Naama Margolese, a shy blonde girl with blue eyes and glasses, became a household name in late December when Channel 2 TV aired a report about the ultra-Orthodox men who regularly taunted her on her walk to school.

In the report, Naama whimpered, “Mom, I’m scared,” as she clutched her mother’s hand during the 300-yard walk from their home to school. In footage, Naama wears skirts to her ankles and covers her shoulders like the rest of the students at her Orthodox school, called Orot, for girls aged 6 to 12. But ultra-Orthodox, or Haredi, men call Naama and her friends whores and spit on them. The school’s ultra-Orthodox neighbors told the TV reporters the Orot girls deserved to be sworn at and attacked for violating the Torah’s command to cover up.

Naama’s story is the latest incident of ultra-Orthodox harassment of women to be reported in recent weeks. Days before Channel 2 aired their report, Tanya Rosenblit, a 28-year-old woman from Ashdod, publicized the half-hour standoff that ensued when she refused an ultra-Orthodox man’s demand to move to the back of a public bus from Ashdod to Jerusalem. In September, nine religious male soldiers refused to stay in an auditorium where women were singing during an official military ceremony. In response, the army expelled four of them from their prestigious officers’ course.

Ultra-Orthodox demands on women in the public sphere are not new: In Jerusalem’s insular neighborhood of Mea Shearim, for example, signs imploring female visitors to dress modestly have plastered the stone walls for decades. But in recent years, the calls have radiated out of that Jerusalem shtetl to larger Orthodox sections of Jerusalem and beyond. Health clinics and post offices have begun to hold separate hours for men and women. Advertising agencies have stopped featuring women on billboards in Jerusalem—even after they covered up their models with long sleeves—because fundamentalist Jews would vandalize the signs.

In the past, these stories garnered only minor news coverage. But Naama’s story sparked a public uproar because she is so young, because police seemed to be doing nothing, and because all the lead characters are religious. Late last month, at a conference for Israeli ambassadors in Jerusalem, President Shimon Peres called on Israelis to “save the majority from the talons of the minority.” He added: “We are fighting for the soul of the people and for the substance of the state.”

***

Founded in 1950 by Jewish immigrants from Bulgaria, Romania, Iraq, Iran, and Morocco, Beit Shemesh’s old city is full of the stucco-sided public-housing blocks typical of ’50s Israeli construction. It was once a mostly traditional or Orthodox town, but in the last two decades, more stringent ultra-Orthodox newcomers have moved in from Jerusalem.

These new ultra-Orthodox residents tended to congregate in their own neighborhoods. They postered public walls with pashkevilim, large block-print Hebrew papers that are vital media for people who shun mainstream Israeli TV, radio, and print news. On a sidewalk near a synagogue, they put up signs asking women to cross to the other side of the street and not to stop to chat because doing so would attract undue attention from the pious. On buses that run through their neighborhoods, the ultra-Orthodox have managed to impose an unofficial rule that women must sit in the back. Beit Shemesh is also home to a new, tiny sect of ultra-conservative women who cover up in the style of the most observant Muslim women, from head to toe.

Continue reading: ‘We don’t want to live here like in Tehran.’

Unsurprisingly, this spirited call to genocide has had Talmudic minds working overtime for millennia. Maimonides, for example, argued in his Guide for the Perplexed that wiping out Amalek doesn’t necessarily mean wiping out the Amalekites; what Jews should target is Amalek-like behavior, the sort of godless vulgarity that is better confronted through compassion and education than by means of violence. Taking a more legalistic approach, the 19th-century scholar Rabbi Hayim Palaggi suggested that even if we took the Torah at its word, it would be very difficult to identify just who should be hauled off to the gallows; with the ancient nations of the world mixed up since at least the time of the Assyrian monarch Sennacherib, we haven’t a chance of correctly identifying precisely whom might qualify as modern-day Amalek.

Still, some won’t stop trying. In 2006, Jack Riemer, an influential Conservative rabbi and a sometime adviser to President Bill Clinton, compared Islamic fundamentalists to Amalek, and Israeli rightists are quick to see hints of the biblical nation in today’s Palestinians. For an extinct race of antiquity, Amalek is alive and well in our imagination.

What we need, then, are new guidelines to handling this most haunting of nations. The genocide question should be easy enough to resolve: In the spirit of Maimonides, let us, too, declare that sinfulness is not biological but behavioral, that sin is best eradicated by means of persuasion and reason, and that violence is rarely the answer. This leaves us with the thornier issue of spotting the Amalekites in our midst. Who might they be? Here’s an attempt at a definition.

The pro-Palestinian protesters who last week interrupted a performance by the Israel Philharmonic Orchestra at London’s Royal Albert Hall are Amalekites. No matter how righteous their rage or how valid their cause, interrupting Webern’s “Passacaglia” with political slogans is a barbaric act. As a long-time, passionate supporter of freedom and justice for Palestine—the only solution, I firmly believe, for a peaceful and sustainable future for both Palestinians and Israelis—I was deeply dismayed to see these hooligans choose to advertise this worthy cause by drowning out music, the one form of human undertaking capable of transcending the innate vileness of the species. The British concertgoers who, judging from video snippets of the incident, yelled at the protesters to leave the hall weren’t siding with the Israelis over the Palestinians; they were choosing culture and civility over brutality and baseness. Amen to that; progress was never achieved, nor would it ever be, by those willing to tear at the delicate fabric of our joint existence for the sake of political causes, no matter how deserving.

Amalekites, too, are the nine religious Israel Defense Forces cadets who this week stepped out of an auditorium in order not to hear women singing. The performance was part of a mandatory lecture in Bahad 1, the IDF’s officer academy; even though more than 50 percent of current cadets are religious Jews, the nine were the only ones to object to the performance. “Listening to women singing,” they explained to their commander, “is against the halacha.” The commander, Lt. Col. Uzi Klieger, was unmoved. “You’re insensitive and disrespectful to these singers,” he said, according to an interview with the Israeli newspaper Maariv, “I can’t allow you to become officers. He who is insensitive won’t know how to tell a child carrying medicine apart from a terrorist in Lebanon, and will end up shooting the child.”

Klieger is absolutely right. The Israeli cadets are guilty of the same myopia as the pro-Palestinian protesters in London, namely the inability to understand that dignity and decency must always trump ideological convictions, and that no matter our persuasions, we must all pledge allegiance first and foremost to those things—like music, like conversation—that make us human, that make life worth living.

Refusing to do so was Amalek’s crime. The olden nation, we know from this week’s parasha, was guilty of not fearing God. This, Maimonides helpfully explained, means not necessarily that the Amalekites failed to accept all of God’s intricate strictures—which would mean, in essence, converting to Judaism—but that they failed to obey the Noahide Code, the seven edicts all nations, regardless of their faith, must follow and that outline the most basic principles of human morality by outlawing theft and murder and commanding the establishment of courts of law. Put simply, Amalek’s singular crime was refusing to behave like decent folks. There’s no greater offense.

Let us, then, obliterate Amalekite behavior, not by issuing half-hearted, tepid calls to civility, but by fiercely clinging, even amidst real and bitter conflict, to our standards, our spirit, our rectitude. Me, I’ll begin by sitting down, dimming the lights, and listening to that marvelous Op. 1 by Webern.

The other instance related to her effusive 2006 introduction of Aharon Barak, the president of the Israeli Supreme Court from 1995 to 2006, who visited Harvard University’s School of Law when Kagan was dean, and who conservative critics said represents “judicial activism.” “I don’t think it’s a secret I am Jewish,” Kagan said. “The state of Israel has meant a lot to me and my family.” She went on to say, “I admire Justice Barak for what he’s done for the state of Israel and ensuring an independent judiciary.”

“[Barak] was central,” Kagan continued, “in creating an independent judiciary for Israel and in ensuring that Israel—a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution—he was central in ensuring that Israel, with all those kinds of liabilities, would become a very strong rule of law nation.”

In her hearings before the Senate Judiciary Committee, Kagan stressed that she would not look to Barak’s judicial method as a model, saying the admiration she expressed in 2006 didn’t stem from his judicial philosophy or specific decisions.

But a third issue was raised at the hearings, and no one spoke of its Jewish antecedents. The elephant in the room was stare decisis (“let the decision stand” in legal Latin). It means refraining from overturning settled matters, regarding them as binding precedent. As we shall see, the controversy over stare decisis has a long history and dates back to the development of Jewish Law, known in Hebrew as halakhah. Interestingly, the Justice’s position in this regard accords with halakhah, even if eating in unsupervised Chinese restaurants does not.

Let’s look at American jurisprudence first.

As Jessica Gresko of the Associated Press noted, “At Sotomayor’s hearings, the phrase [stare decisis] was used about as often as the phrase ‘wise Latina,’ two words Sotomayor took a beating over. For senators, both Democrat and Republican, stare decisis is a big deal. They want to know that as a justice Kagan will be committed to past court decisions and want assurances she won’t overturn them.”

Stare decisis is not mentioned in the U. S. Constitution or in any specific law. In writing for the majority in Citizens United v. Federal Elections Commission, Chief Justice John Roberts wrote, citing precedent, that “stare decisis is neither an ‘inexorable command,’ nor ‘a mechanical formula of adherence to the latest decision.’” In this, Chief Justice Roberts (probably unbeknown to him, as a Catholic) reflected a basic tension in Jewish law.

As a nominee, Kagan termed recent Supreme Court rulings upholding gun rights (McDonald et. al. v. City of Chicago and D.C. v. Heller) “binding precedent.” In response to a question from Sen. Chuck Grassley, who asked her if she’ll follow stare decisis “to uphold Heller and McDonald,” Kagan said she will, as she will for “any case,” leaving herself, as we shall see, some wiggle room.

She also testified that the court’s rulings mandate that in any law regulating abortion “the woman’s life and the woman’s health have to be protected,” a reference to Roe v. Wade (which incidentally is also what Jewish law holds, according to a number of significant Jewish scholars).

Kagan also acknowledged that the case known as Citizens United is “settled law.” In that controversial 5-to-4 decision, the Supreme Court, overturning two precedents, struck down portions of the McCain-Feingold Act and held that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment, potentially opening the floodgates for corporate campaign-finance expenditures. The Citizens United decision has been much vilified and, to a lesser extent, praised.

After demonstrating obedience to stare decisis, however, Kagan also testified, at a different time during the hearings, that the court should properly consider whether a “decision has proved unworkable over time, whether the decision’s doctrinal foundations have eroded, or whether the factual circumstances that were critical to the original decision have changed.” She thus apparently does not favor a doctrinaire application of stare decisis, but views it essentially as a rebuttable presumption; this is the “wiggle room” I referred to earlier and, as we shall see, accords well with the majority approach to halakhah.

There is ongoing tension between binding precedent and “advisory precedent” in U.S., British (common), and Israeli law, among other legal systems. This tension between precedent and innovation is not new; in fact, it has been going on for thousands of years.

It may be useful to consider the Talmud’s position.

Talmudic study has always been about competing in a marketplace of ideas and making sometimes hairsplitting distinctions, all in the name of finding truth. Not only is the Talmud itself replete with controversy, but in the standard editions of the Talmud, of course, the text is surrounded by commentaries and supercommentaries, and thousands more glosses have been written over the generations, many in flat contradiction to previous annotations.

What emerges out of all this seeming chaos is like the results of a spectroscopic analysis, with bands of different colors whose width represents the degree of consensus. On some issues, there is a wide band of a single color signifying broad agreement, while on others there is a colorful rainbow of narrow bands reflecting an enduring lack of consensus. Of course, the range of opinion is ultimately constrained by the Torah, which establishes immutable boundaries. The U.S. Constitution—even if, unlike the Torah, it is amended on rare occasions—functions somewhat similarly.

Over the years, in a lengthy and evolutionary process, Jewish law, which was oral and made by rabbis, based on and limited by Torah mandates, ultimately became codified. Given the Talmud’s preference for inclusion and respect for multiple opinions, such codification was, to say the least, not without criticism and was approached cautiously.

In fact, just the act of writing down rulings, or halakhot, was controversial. Writing the law down was opposed by the rabbis for more than a thousand years because written rulings are inherently less flexible. For this reason, other than the written Torah, known as Torah shebichtav, Jewish law was maintained as solely oral instruction, or Torah she-b’al pe, until political instability prompted Rabbi Judah Ha-Nasi and his rabbinic colleagues to redact the Mishnah, the older portion of the “oral law” in the late second century CE.

Of course, judges and litigants alike all crave certainty, which well-written codes provide.

The tension between binding precedent and advisory precedent continued for a long time, as did the evolution of Jewish codes.

In the middle of the 11th century, Isaac b. Jacob ha-Kohen Alfasi, known as the Rif, compiled the Sefer ha-Halakhot, or Book of Laws, one of the earliest codes. It is arranged in the order of the Talmudic tractates, and embraces only the laws in practice at the time. Where earlier and later authorities disagree, Alfasi decided in favor of the latter, following the rule known as hilkheta ke-vatra’ei.

Maimonides’ 12th century Mishneh Torah created a new literary form for the Codes, that of a book of “pesakim,” or book of statutes without reference to the Talmud or other sources. Maimonides made the shocking but unequivocal statement that anyone who referred to the Written Law and to his own book would know each and every detail of halakhah and have no need for any other book.

This, exactly, was what Maimonides’ detractors objected to. Some, like Rabbi Yonah of Gerona even publicly burned copies of the Mishneh Torah (an action he later regretted). Codifications set the law in stone, and inherently violate the ancient precept that halakhah must be decided according to the later sages.

The principle of hilkheta ke-vatra’ei essentially stands in opposition to the idea of codification that stare decisis represents. Maimonides’ embrace of stare decisis (at least from his day forth) engendered much controversy, with Rav Abraham b. David of Posquières, known as the Rabad, leading the opposition.

Rabbi Menachem Elon, a professor who served as a justice on the Israeli Supreme Court from 1977 to 1993, and who was its deputy president from 1988 to 1993, commented on hilkheta ke-vatra’ei in his major work, Jewish Law: History, Sources, Principles. Elon notes that the rule that halakhah follows the later decisors dates from the Geonic period, from 589 to 1038. It laid down that until the time of Rabbis Abbaye and Rava, in the fourth century CE, halakhah was to be decided according to the views of the earlier scholars, but from that time onward, the halakhic opinions of post-Talmudic scholars would prevail over the contrary opinions of a previous generation.

Rabbi Asher ben Yechiel, who lived from 1259 to 1327 and was known as the Asheri or Rabbenu Asher, or “our teacher, Rabbi Asher,” and is known to Yeshiva students simply as the Rosh, was a codifier. Despite this, he criticized Maimonides’ basic notion concerning the place of a “book of pesakim,” or codes, in Jewish law. He remarkably wrote, “If one does not find their [earlier] statements correct and sustains his own views with evidence that is acceptable to his contemporaries, he may contradict the earlier statements, since all matters that are not clarified in the Babylonian Talmud may be questioned and restated by any person, and even the statements of the Geonim may differ from his, just as the statements of the Amoraim [rabbis living from 200 to 500 CE] differed from the earlier ones.”

“On the contrary,” Rosh writes, “we regard the statements of later scholars to be more authoritative because they knew the reasoning of the earlier scholars as well as their own, and took it into consideration in making their decisions.” He also warns that “all teachers err if they instruct from the statements of Maimonides without being sufficiently familiar with the Gemara (later part of the Talmud) so as to know where they were taken from … therefore no person should be relied upon to judge and instruct on the strength of his book without finding supporting evidence in the Gemara.”

But historical events made the ongoing lack of a code untenable. The late 15th century saw the mass migration of Jewish communities, the expulsion of Jews from Spain, and the establishment of new centers of Jewish learning. Just as instability prompted Rabbi Judah to redact the Mishnah, so too, Rabbi Joseph Karo (1488-1575), himself a transplant to Safed, in the North of Israel (from his native Toledo, Spain, via Portugal, Bulgaria, Egypt, Salonica, and Constantinople), saw the urgent need for a comprehensive code. He called his work the Shulchan Aruch, or “the set table,” and compiled it from 1555 to 1558. It was first printed in Venice in 1565. The work was soon adapted to the customs of Ashkenazi Jewry with glosses written by Rabbi Moshe Isserles, who lived from 1520 to 1572 and was known as the Maimonides of Polish Jewry and later called the Rema. His work is referred to as haMappah, or “the tablecloth,” and was first published together with the Shulchan Aruch in 1569, during the lifetime of Rabbi Karo.

Mindful of the criticisms leveled against Maimonides by the Rosh, Rabad, and others, the Rema cautioned against overreliance by judges on the Shulchan Aruch and on his own glosses, saying, “in any case, a judge must be guided only by what his own eyes can see,” sage advice that has all too often been forgotten. In any event, within a short time, the Shulchan Aruch together with HaMappah became the established starting point for deciding all questions of Jewish law in all Jewish communities worldwide, although Sephardic communities don’t always accept the opinions of Rabbi Isserles as binding.

Common law, also known as case law, evolved similarly and tends to follow the rule of hilkheta ke-vatra’ei. As Rabbi Michael J. Broyde, a professor of Law at Emory University, points out, common law is definitely influenced by Jewish law. He wrote, “The great early writers of the common law had Maimonides’ code of Jewish law in front of them in Latin translation.”

The British legal system has employed common law since the middle ages. It is also widely used in nations that trace their legal heritage to England as former colonies of the British Empire. These include the United States, to some extent, Malaysia, Singapore, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong, and Australia.

Common law is distinguished from statutory law in that decisions are based on previously decided cases, but prior cases need not be decisive. They are granted more or less weight in the deliberations of a court according to a number of factors:

• Is the precedent “on point”? That is, does it deal with a circumstance identical or very similar to the circumstance in the instant case?

• When and where was the precedent decided? A recent decision in the same jurisdiction as the instant case will be given great weight. Next in descending order would be recent precedent in jurisdictions whose law is the same as local law.

• Does the precedent stem from dissimilar circumstances, older cases that have since been contradicted, or cases in jurisdictions that have dissimilar law? (These would be given least weight.)

An example of the application of common law in a United States court is in the famous case of MacPherson v. Buick Motor Co., where then New York Court of Appeals Judge Benjamin Cardozo, who would later become the second Jewish justice on the Supreme Court, established a broad principle of liability for foreseeable danger that was nowhere codified; he based his decision on the judicial trend of predecessor cases over the years that progressively increased the standard for liability, granting more weight to recent decisions. It serves as a good example of the application of hilkheta ke-vatra’ei. And once again, Justice Cardozo’s decision pretty much follows halakhah as it relates to tort liability, or nezikin.

At her confirmation hearing, Kagan was asked repeatedly whether her expressions of opinion in memos written when she was clerking for Justice Thurgood Marshall reflected a proclivity for overturning precedent or viewing cases through a policy-minded prism. She answered cautiously, saying that in her opinion, mere disagreement is not enough to warrant overturning a precedent. This cautious posture is entirely accordant to Jewish law.

Perhaps it is Jewish law’s inherent elasticity and flexibility—bounded by the Torah but expressed in the freewheeling chaos of ongoing study—that has enabled Jewish law to renew itself and remain relevant after thousands of years. This might work in American law, as well.

David E. Y. Sarna is a writer, investor, and technologist. His book, History of Greed: Financial Fraud From Tulip Mania to Bernie Madoff, will be published by Wiley in September 2010. He blogs at David Bar Nahum.

The objection grew from the Talmud’s interpretation of the biblical imperative for a speedy burial, first spelled out in Deuteronomy, where it states that a hanged man “shall not remain all night upon the tree, but thou shalt surely bury him the same day.” Not only must he be buried within 24 hours of death, according to the tractate Sanhedrin, but there can be no “disfigurement of the body as a result of postmortem dissection.” In other words, Jewish law mandates that the body, whenever possible, should be kept whole. An autopsy—with its incisions and tissue extractions, preservations and excisions—violates that mandate.

The U.S. Department of Health and Human Services reports that the number of autopsies performed annually in this country has fallen in recent decades, but these post-mortem examinations are still conducted regularly. For states where medical examiners govern autopsy procedure, the Model Post-Mortem Examination Act (adopted in 1954) mandates that those who die in a suspicious manner—by suicide, homicide, accident, or undetermined cause—must undergo an autopsy, yet this legal requirement brushes up against religious obligations.

New York City, which has the largest and most active medical examiner’s offices in the country (and where I interned during the summer of 2002), has procedures in place when a religious objection to autopsy is raised. (Jews aren’t the only group to raise such objections; the Amish, Hmong, and many Muslims also try to avoid the procedure.) Instead of conducting the standard post-mortem, with the entire body exposed under bright lights and completely dissected, forensic pathologists perform what they term as “minimally invasive autopsy,” wrapping the body in a white shroud and dissecting only where it’s absolutely necessary. If a body has come in with neck trauma, for example, a neck dissection is necessary to distinguish between suicide by hanging or strangulation at the hands of another.

Other parts of the country are catching on to ways of coping with religious concerns about autopsies. In December 2008, David Fowler, Maryland’s chief medical examiner, met with a delegation of Orthodox rabbis and other local ethnic community leaders to review the state’s autopsy guidelines. “Up until then, there was no accommodation in the state law for religious objections to autopsy,” said Rabbi Ariel Sadwin, who was at the meeting and is Maryland director for Agudath Israel, the national network of ultra-Orthodox Jewish communal organizations. “Cases went straight to the medical examiner without considering the needs of the Jewish community to respect the dead and keep organs and tissues intact.” As a result of the meeting, the state has committed to working harder to familiarize pathologists with Jewish protocols.

After Liviu Librescu, an engineering professor and Holocaust survivor, was killed in the 2007 Virginia Tech massacre in Blacksburg, his ultra-Orthodox family faced a problem. The city had a small Jewish community with no permanent rabbi, and the family, specifically his son in Israel, worried that an autopsy of Librescu’s body would violate Jewish law. The task of asking the State of Virginia to release Librescu’s body as quickly as possible and forgo a full autopsy fell to Rabbi Isaac Lieder, the Chabad leader in the capital of Richmond. The medical examiner’s office allowed Librescu’s body to undergo a minimally invasive autopsy (specifically, removing bullets and performing x-ray procedures) as an alternative, and Librescu was eventually buried in Israel.

Developments in medico-legal technology now allow pathologists to perform “virtual autopsies” as an alternative to traditional, invasive ones. In a virtual autopsy, pathologists use CT scans and MRIs to ascertain details about the insides of a cadaver. Three-dimensional visualizations, many of which are breathtaking, can approximate the body’s condition, allowing coroners to determine the cause and manner of death without making a single incision. It’s also cheaper: the cost of an autopsy runs between $4,000 and $5,000, while a virtual autopsy costs five times less.

Around the world—in Britain, New Zealand, Israel, and elsewhere—virtual autopsies are becoming more commonplace and increasingly accepted by religious leaders since they are considered to be halachically okay. “As long as the integrity of the body stays intact and is not violated, there’s no problem,” said Moshe Tendler, a professor of bioethics at Yeshiva University. (Tendler added that he was one of the first rabbis to advocate for the use of a CT scan as a substitute for autopsy when a rabbinical colleague was killed in a traffic accident.) The drawback to a virtual autopsy is that current technology for conducting it can only approximate the full spectrum of what a traditional autopsy uncovers, especially with respect to microscopic analysis. But as medical researchers and pathologists refine their methodologies and improve their equipment, even that hurdle could soon be overcome.

Sarah Weinman writes monthly online crime fiction columns for the Los Angeles Times and the Barnes & Noble Review and contributes to the Washington Post, the Wall Street Journal, the Guardian, and New Hampshire Public Radio’s “Word of Mouth.”

According to the Jerusalem Post, a “Shabbat elevator”—which is just a regular lift, set to stop automatically on each floor, or sometimes alternating floors, so that religious Jews can navigate tall buildings on their day of rest, “does not merely stop at designated floors automatically; its operating system is adjusted so that the weight of the passengers does not influence the amount of electricity the elevator uses.” But a new statement (debatably) signed by authorities including Rabbi Yosef Shalom Elyashiv, “considered the most important living halachic authority in Ashkenazi haredi circles,” declares that using such an elevator “causes the activation of mechanisms that result in transgressions prohibited by the Torah.” This hair-splitting dilemma has made waves in Israel’s religious community—particularly in one home for the elderly where residents rely on elevators to get to synagogue—but one hotel proprietress has a level-headed response: “The thing is that there are so many streams in Judaism. Some follow everything Rav Elyashiv says, and they will take the stairs, and others don’t, and will continue to use the elevator.”

Leading Rabbis Issue Halachic Ruling Against Shabbat Elevators [JPost]
Elevator Or The Stairs? In Israel, Rabbis Weigh In [NPR]
Ultra-Orthodox Balk at New Rabbinical Ban on Sabbath Elevators [Haaretz]

There was only one problem: he may not have been Jewish, and the rabbi who appointed him to the presidency of the Hamburg branch of Keren Hayesod, the global equivalent of the United Jewish Communities, may not even been a real rabbi. As if being a Jew in Germany wasn’t complicated enough, this case of identity wars is threatening to tear apart Hamburg’s Jewish community, which is one of Germany’s most resurgent and influential. And, like so many things in Germany, this affair is all about adhering to the rules.

Born in 1955, Wankum first discovered his Jewish roots when he was 13. Observing that his neighbors, the Wolfs, shut down their dry-cleaning business every Saturday, he asked his mother about this odd business practice. The Wolfs, she said, were Jewish, and so were the Wankums, even though they’d concealed it during the war for obvious reasons.

Enamored with his new identity, Wankum reached out to Hamburg’s Jewish community, and even received documents from its leaders that helped him avoid military service. But his Jewish provenance remained questionable, and he never joined the community as a full-fledged member.

In 1999 when Wankum was offered the presidency of the local branch of Keren Hayesod, he found himself facing an unexpected hurdle. To accept the position, he was told, he needed to be an official member of the community. And to do that, he needed to prove, beyond any doubt, that he was indeed Jewish. He was helped in his quest by Rabbi Dov Levi Barzilai, Hamburg’s chief orthodox rabbi. In December of 1999, Barzilai heard four witnesses, including Wankum’s brother and his wife’s uncle, and then signed a paper declaring, officially, that Wankum was a Jew. Soon thereafter, Wankum accepted his new position.

Under Wankum’s leadership, Keren Hayesod experienced unparalleled success. But in late December 1999, following terrible liquidity problems with his company, Wankum declared bankruptcy, which, in Germany’s unremitting political and economic landscape, is a death sentence: Bankruptcy and debt are unacceptable, and forgiveness is never offered. To anyone, that is, but Wankum. Remembering his charitable past, his fellow community members kept him in their warm embrace, and, in 2003, bestowed on him the highest honor imaginable, the chairmanship of Hamburg’s Jewish community.

It was at that time that Wankum aroused the interest of Stefan Knauer, a veteran journalist for the venerated German weekly Der Spiegel. Nearing retirement, Knauer decided to abandon the hard-edged topics he’d been covering throughout his career and examine instead the state of religion in his local community. The Jewish community in particular struck him as insular, further igniting his curiosity. He was especially fascinated by its boisterous chairman, Wankum. Then, one day, he had an epiphany. “[Wankum] was just looking for rehabilitation,” Knauer said in a recent interview, “a place where no one can criticize him after his bankruptcy, and the Jewish community is the best shelter because any criticism about its chairman is immediately tagged as anti-Semitism and Nazism.”

Guided by his suspicions, Knauer started to ask around about Wankum and his religious affiliations. Wankum, on his end, kept referring the reporter to Rabbi Barzilai, and claimed that 2,000 years of Jewish history gave him the right not to talk to the media.

“We started to look in archives in villages around Hamburg where his family used to live,” Knauer said. “There were registration forms with religion identity and we found that Wankum’s mother was named Ruth Morgenstern and she was registered as Lutheran. But you can’t really know because many Jews hid their identity under the Third Reich. On the other hand, how do you explain that his middle name is Christoph?”

Knauer’s quest might have ended up nowhere if it weren’t for Ruben Herzberg. A local educator and a former beneficiary of Wankum’s funds, he was appointed the community’s chairman after Wankum’s term ended in 2007. Soon thereafter, he said, strange things began to happen. “When I was elected as chairman,” he said, “I found out that we basically don’t have any money to maintain ourselves and that we must find ways to cut our expenses. I might be naïve, but I was expecting our rabbi to care about the situation and take a pay cut.”

Rabbi Barzilai, however, would do no such thing, and an exasperated Herzberg began looking into the rabbi’s conduct. During one such investigation, he learned that several community members, Wankum among them, had no documents certifying his Jewishness. Alarmed, he asked the rabbi to provide proof that Wankum was indeed a Jew.

“After a while we understood that Rabbi Barzilai has no documents,” Herzberg said, “just four witnesses and that only one of them was Jewish himself.” In his defense, Rabbi Barzilai claimed he was not permitted to divulge the names of Wankum’s witnesses, but Herzberg asked around and learned that no such rabbinic edict existed. Suspicious, Herzberg decided to call the central rabbinate in the Israeli coastal town of Netanya, where Barzilai claimed to have gotten his rabbinic certification. They were shocked to learn it wasn’t kosher: the chief rabbi of Netanya wrote Herzberg back, saying that the people who appointed Barzilai had no authority to do so. (Barzilai’s credentials are currently being examined by a German rabbinical court. He refused to comment for this piece.)

At this point, Hamburg’s wars of the Jews escalated. “During our checkup,” Herzberg said, “we found that 20 people were missing documents in their files; 16 responded and brought us the papers, but four, including Wankum and his brother, never answered and were ousted from the community.”

Herzberg fired Rabbi Barzilai, an act he he’s claimed in previous interviews with the press was motivated by financial issues, with the community refusing to pay his pension. Some of his colleagues in the community were so livid about what they perceived to be Wankum’s deception that they suggested digging Wankum’s deceased mother from her grave in the Jewish cemetery and interring her elsewhere. Within months, former collaborators became the worst of enemies.

“I will tell you what Herzberg is according to the Jewish halacha,” Wankum fumed recently. “He is a total schmuck, a pathological liar of the worst kind. He just wants to clean the community from anyone who was there before and he uses methods that Nazis used in order to do it.”

Any attempt to question his sincerity, Wankum added, was malicious. “After all I did,” he said, “the claim that I used Judaism as shelter is a disgusting lie. I have a daughter who volunteered in a kibbutz and lives a traditional life in Israel. So what kind of other proof do I need?” Wankum also said that it was sheer jealousy that motivated his enemies and fueled the fallacious claims against him. “Our fight” he said, “is a fight for Jewish identity.”

Stefan Kramer, the General Secretary of the Central Council for Jews in Germany, agrees. “What Herzberg and his friends are doing is Chillul Hashem,” he said, using the Hebrew term for desecration of the holy. “For me there are more important things in Judaism than whether you mother is Jewish or not. If you support Jewish issues and if you educated a daughter and live in Israel it is much more Jewish to me than people who want to drag you mother out of her grave. Herzberg is Jewish by birth, but him running to the media, letting goyim in, shows me that he lacks Jewish brains. Jews can’t sit in a house of glass and throw rocks outside, definitely not in Germany.”

Rabbi Sherlo: Blind Men Can Feel Their Dates [Ynet via Failed Messiah]

But the first item on the agenda last night—a proposal to allow the synagogue’s rabbi to officiate at same-sex marriages—generated almost no debate at all. Of the 175 members who cast a ballot, 164, or 94 percent, voted in favor—a margin that may have surprised even the most optimistic observers, and well in excess of the 75 percent supermajority needed to pass. “That’s as close to unanimous as you get,” said Ali Engel-Yan, a member of the ritual committee who was heavily involved in the issue.

Sunday’s meeting was the second time the synagogue, one of Toronto’s oldest, put the question to a vote; the first time, in 2004, a majority of congregants supported allowing same-sex marriages, but the proposal failed to reach the required supermajority, then fixed at 80 percent. (The decision in 2006 to lower the bar to 75 percent, and to allow proxy voting, was done in part to facilitate passage of the same-sex marriage question.) The quiet success of the second effort capped an eight-year process by the 600-member congregation to reconcile the inclusive, egalitarian beliefs that underpin Nareyever’s existence with the desire to maintain halachic integrity; in other words, to arrive at the conclusion, by consensus, that, just as they could call themselves “traditional” while allowing women to read from the Torah and wear prayer shawls, they could extend participation in the rituals of family life to gay men and lesbians without giving up the beloved designation.

When the issue first came up, only the Reform rabbinate had voted to allow same-sex marriages in North American congregations, and only a handful of Canadian provinces, including Ontario, were issuing same-sex marriage licenses. Within Narayever, even those who considered themselves in favor of gay rights generally struggled to find support for their moral convictions in the religious texts.

“They might be small ‘L’ liberals in their lives, but they do look at the shul as being a bedrock of tradition that doesn’t just flow with the times but that defends things that are timeless,” Narayever’s rabbi, Ed Elkin, said during a recent interview in his small office. “The concern in 2004 was that we were going out on a limb—‘Does this mean we’re going to be a gay shul?’ was a concern of people,” Elkin went on. “And there were people, a subgroup of those who were in favor of gay marriage, who objected to the whole process. They said it was a human right—that the rights of the minority shouldn’t be voted on.”

In the intervening five years, the ground has shifted considerably. Canada passed a federal same-sex marriage statute in 2005, becoming the fourth country in the world to allow gay civil marriage. (A handful of U.S. states—starting with Massachusetts in May 2004—have opened their marriage bureaus to gay couples.) Some Christian denominations have engaged with the issue and, in 2006, the Rabbinical Assembly of the American Conservative movement issued opinions allowing individual congregations that adopted gay marriage rituals to remain within the movement. “It would have made us a fringe shul [in 2004]—we would have been jumping the gate,” one Narayever congregant told me at a kiddush lunch in late May. “Now,” he shrugged, “no one cares.”

***

The First Narayever Congregation is housed in a modest brick building, painted slate-blue, at the corner of a residential side street just west of the University of Toronto campus. Originally built as a Forester’s Lodge, the synagogue was used as a Mennonite church before members of the congregation, initially established in 1918 as a mutual aid society for emigrants from Naraiev in the Ukrainian region of Galicia, bought it in 1940. But like many small downtown shuls—not just in Toronto, but in cities across North America—Narayever found itself steadily emptying through the 1950s and 1960s as its founding members died or went to live with their children, who in large part moved to the suburbs or gravitated away from their parents’ orthodoxy. They joined Toronto’s newer, bigger synagogues, like the Reform Holy Blossom Temple or the Conservative Beth Tzedec.

By the 1970s, the shul itself had fallen into a state of semi-disrepair; photographs show the building with its front windows boarded up. It was saved by a small group of Jews—led in part by young academics living in the neighborhood—who began holding egalitarian services downstairs that, while Orthodox in approach, reflected the progressive social values of the baby-boom generation. Dianne Saxe, who joined the shul in 1982, said she was sold from the moment she walked into her first service and saw a man leading services with his baby resting on his shoulder. “I’d never seen that,” said Saxe, who was then a freshly minted attorney with a toddler and an infant of her own.

At that time, gender-egalitarian practices were about as welcome in Orthodox shuls—and, particularly in Canada, in Conservative shuls—as gay marriages are today. The remaining members of the original Orthodox congregation sued unsuccessfully to stop women from handling Torahs during services in the downstairs rec room, but in short order the new gender-egalitarian congregation had displaced the aging remnant of the original membership in the main sanctuary. Seating was integrated and the partition dividing the men’s and women’s sections was moved down to the function hall. The few elderly members who didn’t decamp for shtiebls in the surrounding neighborhood were given two rows of single-sex seating alongside the bimah, mainly so that the poorest among them would feel comfortable continuing to come eat at the lunches that followed Shabbat services.

But as the rest of the city’s Jewish community caught up in terms of adopting gender-egalitarian practices, the weight of the shul’s identity shifted back to its “traditional” designation, with its full Torah readings each Saturday. Nonetheless, Narayever retained a kind of rookie spirit. It’s the kind of place where new members are immediately asked which committee they want to join; the most active members have given thousands of hours of volunteer time to keep it going. Because it never affiliated with a movement, Narayever pursued a do-it-yourself approach, reflected as much as anything in the neatly trimmed mailing-label stickers, printed with a version of the Amidah prayer that includes the female progenitors of the Jewish tribes, that have been carefully stuck into each copy of the Orthodox Birnbaum siddurs tucked into pew pockets. The congregation is flexible enough to hold on to people who profess a variety of views on God, from mild agnosticism to outright atheism (moderated by the belief that Judaism offers thousands of years of wisdom on the living of a good life); but the size of the congregation reinforces a general preference for consensus on matters ranging from ritual practice to construction projects; no one wants to drive anyone away from a place they see not just as family-friendly, but as an extended family.

The first time the question of how to accommodate gay members arose was in the late 1980s, when a lesbian couple applied for family membership; the board sidestepped the question by converting all family memberships into individual memberships. In early 2001, almost a year after the American Reform rabbinate voted to consecrate same-sex unions, another lesbian member asked Elkin, Narayever’s rabbi, to officiate at her wedding. The timing couldn’t have been more awkward: Elkin, who grew up attending an Orthodox synagogue on Long Island, New York, was ordained at Hebrew Union College, and while he had voted in favor of the same-sex marriage resolution at the Reform rabbinate meeting that year in Greensboro, North Carolina, he had only been at Narayever a few months, and he didn’t feel it was his place to test the limits of his new congregants’ liberalism. “I was a Reform rabbi by training, and I wouldn’t say that I came here knowing what the congregation meant by ‘traditional-egalitarian,’ and how far I could go,” Elkin said. “I didn’t feel when the couple contacted me that I could just say yes and go ahead.” Instead, he took the issue to the board, which established a “committee on inclusion” in 2001 to study the myriad halachic questions that would be involved in sanctioning gay marriage.

In keeping with the intellectual bent of the congregation, the committee proceeded to meet monthly over the course of a year to consider 200 pages of readings; at the same time, open meetings were convened to bring the rest of the congregation into the discussion, with presentations by rabbis representing a variety of viewpoints and a screening of the film Trembling Before G-d about the alienation of gay Orthodox Jews. By March 2003, the committee had produced a densely written 24-page report, along with a 13-page appendix annotating Torah and Talmudic commentaries relating to same-sex marriage, which carries the legend “Do that which is right and good in the eyes of G-d” on the front. After 18 months of discussion, they were prepared to recommend that Narayever begin allowing gay members to participate fully in life-cycle events—birth and death announcements, aliyahs at bar and bat mitzvahs, conversions—and to continue making anniversary announcements for all members, regardless of sexual orientation, as it had begin doing in February 2002. But when it came to the central question—same-sex marriage—the committee said it could not reach consensus, and recommended waiting a year to vote at the June 2004 general meeting. “Some members may feel that we are recommending a delay just for the sake of delay,” the committee members wrote, noting that they had no intention of becoming a mini-Sanhedrin. “We believe that it would ultimately benefit the community more to live with the uncertainty for another year in order to have an opportunity for members to struggle with the issues in an informed and educated manner.”

The vote was held at a special meeting in January 2004. Synagogue members had argued themselves out, waylaying fellow congregants at traffic lights to share their latest thoughts on the issue and diverting themselves during Haftarah readings by thumbing through the voluminous resource binder the committee left in the sanctuary. “People did not want to drag it out until June,” said Elkin, who in December 2003 sent the membership his own 10-page letter offering a halachic analysis supporting Jewish same-sex marriage.

His reasoning was twofold: either the shift could be justified as a correction of an injustice based on outdated assumptions, as with women not being allowed to touch the Torah, or the ancient findings regarding homosexuality could be re-interpreted to apply only to a very narrow category of almost pagan behaviors that simply do not pertain to committed same-sex relationships as they exist in the modern world.

“Historically, in the development of halacha, where there has been a will to change, a halachic way has usually been found to implement the change without undermining the tradition,” Elkin wrote his congregants. “The question is, do we have the will? … In bringing same-sex couples under the chuppah of our shul, we’d be doing something that Jews have never done before our own time, to our knowledge. We’d be doing so without the warrant of a bet din of rabbis whose views have been disseminated and accepted by other ‘traditional’ communities. It is, without a doubt, a ‘big deal.’” Elkin wound up with a flourish: “I would be proud to be the rabbi of a shul that used the tools halacha makes available to be as inclusive and as welcoming as it possibly can to a group of Jews who have been marginalized far too long.”

Seventy-one percent voted in favor, leaving the policy unchanged but giving proponents of same-sex marriage the moral victory—a big deal, of sorts, but also no deal at all. “It was an ideal result—it meant the people who were in favor felt good, and it bought us time,” said Saxe, who added that she was undecided herself until her children convinced her that breaking the halachic constraints on gay Jews was a change in the tradition that would make their generation more likely, rather than less, to remain within the Jewish fold. “Everyone knew it would come back in four or five or six years, and it wouldn’t be cataclysmic.”

***

Which is, of course, exactly what happened. Immediately following the first vote, a handful of members left, on both sides of the issue—people who, in the words of the 2003 committee report, “saw the halacha as so overwhelmingly opposed to recognition of same-sex relationships that they didn’t know why we were spending time contemplating a change,” and those who “felt that the need to have full inclusivity was so overwhelmingly clear that they didn’t know why we were spending time talking about the need to change.” In the meantime, the synagogue continued to grow, attracting about a hundred more members by this year than it had five years ago. Many are young adults who, unlike their parents, stayed downtown as they started families and wanted a congregation that offered an ethical and religious community; as members of not just the post-Stonewall generation, but the post-AIDS generation, the idea that religious strictures on same-sex couples should be so at odds with civil laws on marriage, and with their own beliefs, seemed more anachronistic than anything else. “I think this whole issue in our society, not just in our shul, but in society, is very generationally divided,” said Ali Engel-Yan, who at 32 is part of the younger generation of up-and-coming synagogue leaders. “Our generation is more open—it’s almost like yesterday’s news.”

At a recent Saturday kiddush—coincidentally following the reading of the Haftarah portion detailing the love between David and Jonathan, widely interpreted by gay scholars as a homosexual, not just fraternal, bond—members seemed more interested in discussing the latest gossip about the elevator issue than in reopening the marriage debate. “It’ll pass, no question,” several people told me. Yet many of the most ardent supporters—including synagogue officers and members of the ritual committee—declined to speak to me, on or off the record, before the vote, citing concerns not just about jinxing the outcome but about drawing attention to Narayever. Elkin said only a handful of people had turned up for a discussion session he had about the issue in early May—something he attributed to the fact that most had made up their minds already, rather than to disinterest or ambivalence. The central question that preoccupied participants at that meeting was about how the shul would accommodate transgender members. “The person who brought it up seemed to be saying not so much ‘where is this heading’ but ‘let’s try to get it all together and try to anticipate what the next hot issue is going to be,’” Elkin said. “That was a surprise for me.”

It’s not clear who will be the first gay couple to be married in the shul, but at least one couple was waiting on the outcome of the vote to book their aufruf in the sanctuary. “If it had gone the other way, this morning I would have been sending out mass emails asking who knows how to read Torah, because we would have had to do it ourselves,” said Orrin Wolpert, who regularly attends Narayever’s Friday night services, when Elkin holds roundtable discussions about the week’s Torah portion. He and his fiance, due to be married in early August, decided not to upend their wedding plans, but called first thing this morning to pick a date. With Elkin’s assistance, Wolpert has developed a 20-page handbook of wording and practice for a same-sex marriage ceremony that he believes is in keeping with Narayever’s traditional practices. (Wolpert, a longtime friend, shared the document with me in draft form). “As practicing Jews, we take seriously the commandments of the Torah and believe it is our responsibility to embrace them and honour them,” Wolpert writes in the introduction. “At the same time, we assert our rights as members of B’nai Yisrael to live by these commandments and to enjoy the rituals that were derived from them, regardless of our sexual orientation.”

Yet, in an odd way, the point of taking the vote at Narayever was simply to have it done—to have the issue resolved, rather than hanging like a sword of Damocles over the congregation the next time a couple came forward asking for a wedding. “Someone had to decide, and who should decide? The rabbi? The board?” asked Elkin. “There are advantages and disadvantages to the way we’re doing it, to this process.” He said some supporters of same-sex marriage had pushed for him to decide by fiat—a move he resisted this time as he had in 2004. “My instinct was that on such a fundamental issue it’s best if the whole shul decides, because that way the decision has the strength of the whole community,” Elkin said. “This is the whole community walking forward together, holding hands—it’s happening elsewhere, but it’s still new for us.”

A draft of Wolpert’s same-sex wedding service is available for download here, in PDF form.