How the Torah is often used as a defense for things that the Torah finds indefensible

We are currently in the middle of the month of Ellul, which – as we know – was when Moshe went up Har Sinai to receive the Luchot Shniyot – the second set of luchot.

By this point the Jewish people had served the Egel and Moshe had already been up Har Sinai to petition God to save the Jewish people. However, it was in this third stretch on Har Sinai from Rosh Chodesh Ellul until Yom Kippur when Moshe renewed our commitment to Torah, which is why our key avoda between Rosh Chodesh Ellul and Yom Kippur each year is to do the same and to reaffirm our commitment to Torah.

In terms of our individual duties, this means that we must each undergo a cheshbon hanfesh – an act of sincere personal soul searching – and consider where our lives are not aligned with Jewish law and Jewish values. In fact, I would argue that the cleansing of the soul in Ellul is undoubtedly an even more strenuous endeavour than the cleansing of our homes that we perform in the weeks prior to Pesach, although sadly in many parts of the Jewish world, while we clean to excess before Pesach, our spiritual preparations in Ellul are half-hearted at best.

However, in order to undertake this endeavour we need to be confident that our understanding of Torah is accurately calibrated according to the true values of Torah, because what often occurs is that external forces – be they spiritual forces like the yetzer hara, or other kinds of social forces – can fool us, confuse us, or encourage us into thinking that the Torah condones a particular attitude or behaviour which, in fact, it directly challenges, otherwise described by chazal as being megaleh panim ba’torah shelo kehalacha.

The purpose of this shiur whose title is ‘How the Torah is often used as a defense for things that the Torah finds indefensible’ is to highlight some of these areas where we – as a community and as individuals – misrepresent Torah in the name of Torah – but before I proceed a little warning is in order.

While I may be highlighting some issues that exist among those ‘to the right’, and some issues that exist among those ‘to the left’, if you think that none of the topics apply to you then – in all honesty – this shiur is misplaced, because I have not come to slur other Jews, but rather, to stand up for the honour of Torah and show concern for my fellow Jew.

At the same time, there is a second reason for delivering this shiur which is that beyond our individual responsibility for our own individual actions, we are also responsible for the actions of others as well. Although we are told this in general, it is noteworthy that Rav Kook (Mitzvot Re’iyah 581:2), while basing himself on the Tur (Orach Chaim 581), explains that the Asseret Yemei Teshuva are the days when beinunim – people like you and me – need to atone not only for our actions, but also על מה שלא היו מוחים ומוכיחים – for the things that we should have protested against and rebuked others about but failed to do so, and in our days I believe there are many occasions when the Torah is being used as a defense for things that the Torah finds indefensible which we should addressing.

Having provided this introduction I shall now begin my presentation.

CASE 1 – Rodef

So to begin, I’d like to explain how I became drawn to this topic, and this occurred early in 1995 when I was studying in Yeshiva.

As we know, there was considerable opposition to the Oslo accords in 1993 and early 1995, and very strong sentiments expressed by the religious Zionist community against the then Prime Minister Yitzchak Rabin. At the time I was in my year in Israel learning in Yeshivat Kerem B’ Yavne and studying Massechet Sanhedrin, and though the Yeshiva did not publicly issue position statements on the mood of the time, halachic terms like ‘rodef’ – meaning pursuer – which I was studying in the Gemara were being bandied around in the press towards Prime Minister Rabin.

Then, on that fateful night in November 1995, Rabin was murdered. And not only was he murdered by a religious Israeli – who had previously studied in Kerem B’Yavne and Bar Ilan – but his murder was defended by the rodef principle.

I remember that night so well. The pain. The shame. How the Torah that I’d grown to love had been used to defend an act of hate. To quote Rabbi Sacks in his brilliant Not in God’s Name: “Too often in the history of religion, people have killed in the name of the God of life, waged war in the name of the God of peace, hated in the name of the God of love and practised cruelty in the name of the God of compassion. When this happens, God speaks, sometimes in a still, small voice almost inaudible beneath the clamour of those claiming to speak on his behalf. What he says at such times is: Not in My Name.”[1]

Since then I have tried to be cognizant of instances where Torah values and Torah teachings are used to justify actions that run contrary to the Torah. Thankfully, there have not been many instances since then of such extremity. Still, any time Torah principles have been invoked to justify acts that the Torah strongly opposes, and any time I encounter an instance of megaleh panim ba’torah shelo kehalacha, I believe we can still hear God uttering ‘Not in My Name’.

Let me now present to you a number of less extreme examples where this occurs today.

CASE 2 – Attitudes to charity

Among the many things I do is review Jewish books, and two years ago I wrote a book review on a work titled ‘Psakim UTeshuvot’ by Rabbi Aharon Arieh Katz, which is an extensive contemporary commentary on sections of Yoreh Deah in the same format of the Piskei Teshuvot series – written by his father in law Rabbi Simcha Rabinowitz, and it was during my study of this work that I felt that Torah was being used to defend things that the Torah deems indefensible.

For example, in his remarks on יורה דעה ס’ רמה, Rabbi Katz discusses the duty of a parent to teach their child a trade as famously stated in Gemara Kiddushin 29a where we read:

האב חייב בבנו ללמדו אומנות…רבי יהודה אומר: כל שאינו מלמד את בנו אומנות – כאילו מלמדו ליסטות.

A father is obliged to teach his son a trade…. Rabbi Yehudah says: Whoever does not teach his son a trade is as if he is teaching him to steal. 

In fact, it is noteworthy that the Yerushalmi provides a biblical support for this duty:

ללמדו אומנות – תני רבי ישמעאל: “ובחרת בחיים” (דברים ל, יט) – זו אומנות (ירושלמי קידושין א, ז)

To teach him a trade – It was taught in the school of Rabbi Yishmael, “And you shall choose life” (Devarim 30:19) – this refers to having a trade.

However, notwithstanding all this, Rabbi Katz explains in ‘Psakim UTeshuvot’ that this only applies, and here I quote:

רק לאחר שגדל ולא הצליח בתורה אז ילמדנו אומנות

only once he has grown up and not succeeded in Torah then you should teach him a trade

which is supported by the statement of Rav Nehorai (Mishna Kiddushin 4:14) about his specific son

מניח אני כל אומנות שבעולם ואיני מלמד את בני אלא תורה

I will ignore all the trades of the world, and shall only teach my son Torah. 

When I read these remarks I was simply blown away, because rather than the sugya informing us that parents should teach their sons a trade while in the rarest of cases when the student is clearly a budding ‘gadol’ this is not necessary, here we have a superimposition of a modern concept – that is that most men should not work and instead should learn Torah – upon clear Torah teachings which are meant to help people earn a living and live a crime-free and financially independent life.

And of course, this then has an impact on how we view Tzedakah which is also addressed by Rabbi Katz later on in the book. He begins by citing יורה דעה ס’ רנה which states:

לעולם ירחיק אדם עצמו מהצדקה ויגלגל עצמו בצער, שלא יצטרך לבריות…ואפילו היה חכם מכובד והעני, יעסוק באומנות ואפי’ באומנות מנוולת, ואל יצטרך לבריות.

One should always avoid charity and rather roll in misery than to depend upon the help of man….And even though he be scholarly and respectable, let him engage in some occupation, even an unpleasant occupation, so as not to need the help of man.

But he continues by saying, and here I quote, that

ובזמנינו דזילא מלתא טובא להתעסק באומנות מנוולת אסור לתלמיד חכם לעסוק במלאכה מנוולת משום חילול ה’ ודוקא בימיהם הותר לחכמים לעשות כן מפני שהחכמים הם היו הגדולים ולהם השררה ולא היה להם מחמת מלאכה בזויה כי ההמון לא היתה בידם לבזותם ולא היה שם שמים מתחלל.

and in our days where it is not a nice thing to be involved in an unpleasant occupation it is forbidden for a Torah scholar to be involved in unpleasant work as it is a Chillul Hashem, and only in those days were [Torah] sages permitted to do so because they were then regarded as the gedolim (ie. leaders) and they had (religious and political) authority and this was not diminished due to unpleasant work because the masses did not have the ability to disrespect them and therefore a Chillul Hashem was not created.

Here too I was simply startled, not only for the dismissal and manipulation of basic halacha, but also by the harm that such remarks can have – and are having – on the social and economic wellbeing on tens of thousands of Jews who are living in poverty in the name of Torah – despite this being something that numerous Torah texts seek to avoid.

Not long afterwards, I was listening to the Headlines radio show whose title for the week was ‘Halachos of Parnassah and the Tuition crisis’[2] and here too in this programme – which I sincerely believe is essential listening – I heard from those being interviewed that rulings in the Shulchan Aruch pertaining to the duty of a parent to teach their child a trade no longer apply, that while the Gemara states that one should not rely on charity especially from non-Jewish government this does not apply today, that it is in no way a Chillul Hashem for high percentages of Jewish populations in non-Jewish countries to rely on benefits rather than work, and that – to top it all – we should not discuss the rife poverty in numerous Hareidi neighbourhoods because, in fact, there is no poverty but instead outright miracles that should not be discussed in public so that we do not undermine these miracles.

Please take a moment to process all of this. What I am saying is that contemporary so-called halachic texts and contemporary readings of classic Torah and halachic texts are encouraging a lifestyle that is in direct conflict with numerous Torah teachings, in the name of Torah!

So here is a clear example of how the Torah in our day is being used by some as a defense for things that the Torah finds indefensible, and I am mentioning this because I sincerely believe that it is our task to stand up for true Torah laws and values, while also concerning ourselves with the financial future of our fellow Jews.

CASE 3 – Hypermodesty

Given that I have spoken about personal and economic welfare, let me offer a further example of how Torah in our day is being used as a defense for things that the Torah finds indefensible.

As some of you may know, I am a board member of Chochmat Nashim which is an organization that seeks to uphold Torah values in response to extreme policies and practices towards women in the Orthodox world, and one of the battles that Chochmat Nashim have been leading is the fight against hypermodesty and the erasing of women from the public square and publications.

Of course, they may be some who adopt a live and let live attitude, but underpinning our work is a real and deep concern that this censorship of women is doing harm – and here I mean real harm – in terms of the way that men relate to and treat women, and how women receive life-saving information. To use just one example, this includes the fact that in some communities it is deemed improper to post information about breast cancer which is having a measurable impact on the lives and deaths of women (nb. according to Ruth Colian, though charedi women have a lower rate of breast cancer than secular women, they have a far higher mortality rate — as much as 30% higher, according to some estimates). In all seriousness, I cannot think of many better examples of how Torah is being used by some as a defense for things that the Torah finds indefensible.

However, having just discussed economics, let me given you a further example of hyper modesty.

I previously mentioned that Chochmat Nashim has been leading the fight against the erasing of women from the public square and publications which is arguably harmful in terms of the perception of treatment of women, but this was taken up a further notch this month because a Lakewood based magazine called ‘The Voice’ has – and here I quote – ‘agreed not to accept for publication any advertisements which contain photos of wigs’.

Let me say that again. An Orthodox magazine has decided that Torah values can be invoked to justify a so-called modesty policy of not publishing pictures of sheitels which – according to most poskim – is a valid method for married woman to cover their hair as required by Torah custom or Torah law.

And why I am so troubled by this? Because aside from its absurdity vis-à-vis halacha, this policy – as well as the policy not to publish pictures of women in general – directly and significantly impacts the income of women (which it should be noted, is even more crucial in a world that discourages men from studying a trade!). Though we are taught התורה חסה על ממונן של ישראל – that the Torah is concerned about the financial wellbeing of Jews – apparently when it comes to hypermodesty this is not the case, and here too it is our task to stand up for Torah while also concerning ourselves with the physical heath and financial status of our fellow Jews.

CASE 4 – Mechitzot

A further case I’d like to discuss involves Mechitzot. Now let me begin by saying that every Orthodox shul disagrees about how high, how low, how transparent etc. the mechitzah should be – and this I can attest to as a board member of my shul. But let me point out two important issues. While Rambam writes in his Peirush HaMishnayot to Massechet Sukkah that the purpose of the mechitzah is so that

כדי שלא יסתכלו האנשים בנשים

so that the men will not stare at the women

he rules in his Yad (Hilchot Lulav 8:12) that it is merely to ensure

כדי שלא יתערבו אלו עם אלו

so that they will not mix with each other

and as Rav Moshe Feinstein (Iggrot Moshe OC I No. 39) writes, this is the halacha and this is why – at least in theory – a transparent mechitza is sufficient. But this is not why I am discussing this topic. Instead, I’d like to talk about Hagbah.

As we know, it is the practice when the Torah is lifted for Hagbah that the community sing the words

וְזֹאת הַתּוֹרָה אֲשֶׁר שָׂם מֹשֶׁה לִפְנֵי בְּנֵי יִשְׂרָאֵל

This is the law that Moshe presented to the Bnei Yisrael’ (Devarim 4:44).

This practice is based on a ruling in Massechet Sofrim (14:14) – which is then cited verbatim in the Shulchan Aruch Orach Chaim 134:2 – which states that

מראה פני כתיבת ס”ת לעם העומדים לימינו ולשמאלו, ומחזירו לפניו ולאחריו, שמצוה על כל אנשים ונשים לראות הכתב ולכרוע, ולומר: וזאת התורה וכו’

they lift the Torah high and show the face of its writing to the people who stand there to the right and left and turn it front and back, for it is a mitzvah for all men and women to see the written words”.

That is, the halacha is for both men and women to be able to see the words of the Sefer Torah.

However, as many women will attest, this is often impossible due to the mechitzah, and so by wishing to increase the height or decrease the visibility of a shul mechitzah in a way that is far stricter than required by halacha, we actually detract from the halachic duty for both women and men to see the Torah and we literally blind women from seeing the Torah while defending that practice in the name of Torah.

CASE 5 – Conversion

I would now like to move onto a different topic of giyur which is a topic that I’ve been examining in considerable halachic depth over the past four years. As we know, different Orthodox Battei Din have different criteria and expectations of geirim, although in almost all cases the general approach of Orthodox Battei Din has been to accept the Jewish status of those converted by other Orthodox Battei Din.

Sadly nowadays, for a variety of reasons that go way beyond the time available for this talk, this is not the case and numerous sincere geirim who have fully adhered to the entire conversion process kedat vek’din are not accepted by Jewish institutions for reasons of policy rather than psak – meaning that while an institution will readily admit that an individual is halakhically Jewish, they won’t readily admit them to their organization such as a synagogue body.

Yet, especially in the cases that I am familiar with, what is often – although not always – said to those geirim is most certainly a direct contravention of v’ger lo toneh (Shemot 22:20), which is repeated in Vayikra 19:33 and then in Vayikra 25. In fact, the Gemara (Bava Metziah 59b) is clear that

תנו רבנן: המאנה את הגר עובר בשלשה לאוין

the Sages taught: One who verbally mistreats the convert violates three prohibitions, 

and therefore giur is undoubtedly an area where Torah can be and is used as a defense for things that the Torah finds indefensible.

Until now you may be thinking that these are all problems in communities ‘to the right’. However, do not be fooled because Torah is repeatedly being used as a defense for things that the Torah finds indefensible in Modern Orthodox and more liberal Orthodox communities, although as a recent facebook survey has shown me, far too many modern orthodox Jews are unprepared to acknowledge this fact and would rather – and here is a term I truly hate but I think has a place here – ‘chareidi bash’. In fact, I would go so far as to say that if people can only see how Torah is used to defend things that the Torah finds indefensible in communities to those that they do not belong, then this is a clear demonstration that their loyalty is not to Torah but instead to their own ideology – because if we truly care about Torah then we would be more willing to look into our own lives and consider where our lives are not aligned with Jewish law and Jewish values, rather than constantly finding fault and criticizing others.

CASE 6 – Chareidim on planes

To use one example, a few months ago a story circulated online about how an El Al flight from New York to Israel was delayed for over an hour due to chareidi men who requested to be reseated after they were seated next to women.

Now let me make this clear. I strongly oppose such behavior and think it is hard if not impossible to justify halachically, aside from the fact that it is now against the law. In fact, El Al CEO Gonen Usishkin has clearly stated that “any traveler who refuses to sit next to another traveler will be immediately removed from the flight.”

Many articles – both in the Jewish media and secular press – spoke of the Chillul Hashem of chareidim who behave this way. However, as those on the flight attested, this is not what happened. True, there were a few men who requested to change seats, but this episode lasted no more than a few minutes, and the real delay was caused by the airline itself. As one passenger on the plane wrote: “I heard and saw the shock and uproar in the media, and because I was there, I do not understand how this story received such wide-ranging publicity. This sounds so unreal [that a flight was delayed for over an hour], why do you not confirm the facts before publicizing? This story has caused Israel much international damage, to our good name across the world, so what is the point?”.

Ultimately, while we could debate whether a chareidi passenger who asks – sensitively and with respect – to change their seat is a Chillul Hashem, there is no doubt that the way in which this story went viral based on the pleasure taken by so many Jews to share and criticise chareidim without choosing to know the facts is most certainly a Chillul Hashem, and that this is a compelling example of how Torah – in this case a misinformed episode which was so quickly claimed to be a Chillul Hashem – is used to as a defense for things that the Torah  find indefensible – which in this case is maligning a whole group of Jews and thereby causing a real Chillul Hashem.

CASE 7 – Chillul Shabbat

Having mentioned Chillul Hashem let me move onto Chillul Shabbat, because not only have I found that more liberal minded Orthodox Jews are prepared to tolerate Chillul Shabbat (and here I wish to distinguish between Chillul Shabbat and Mechalalei Shabbat), but they have often tried to give Torah justification for public Chillul Shabbat in cases that – at least to me – are a considerable stretch, and here let me offer two examples – both from Israel.

As you may know there was a public and political debate whether the Tachana Rishona in Jerusalem would remain open on Shabbat and that it has been decided that it stay open. To quote Jerusalem Major Nir Barkat: “The status quo in the city is that there are restaurants and entertainment centers open on Shabbat, and no commerce in the Jewish parts of the city…This is exactly what is happening at the First Station and these are the rules in Jerusalem and always have been.[3]

Of course, I presume everybody here would agree with these remarks. However, something strange happened during the debates about the First Station which is that a number of Orthodox Jews – some of whom you may also know – publicly defended the opening of the first station, invoking terms like ‘unity’ and ‘peace’ to justify their stance.

However, to again quote Rabbi Sacks ‘unity is undeniably a Jewish value, but not necessarily and in all circumstances a supreme and overriding one[4], and though we should always consider the impact of Torah law on human behavior, we must also consider the impact of human behavior on Torah law.

In fact, a similar example can be found in Rabbi Cardozo’s remarks about the Shabbat construction work on the Tel Aviv railway when he wrote:

There is only one sanctity that is even greater than Shabbat and that is the holiness of the human being. When we have to choose between these two sanctities, Jewish law is clear: The human being takes precedence. If it is true that the Tel Aviv Light Rail and the speed train connecting Tel Aviv and Jerusalem will indeed save countless human lives by having people switch from car to rail, Halacha will, without any doubt, demand of us to work on Shabbat to complete construction as soon as possible. Any postponement would be a terrible violation of Halacha itself.”[5]

Despite this flowery language, what Rabbi Cardozo is arguing here is that halacha demands that we break shabbat publicly, and repeatedly, in order to construct a rail track for trains on the basis of ‘pikuach nefesh’.

Now I ask of you to think this through and sincerely ask yourself, is this not also the invocation of Torah principles to justify public and repeated transgression of a Torah law?

CASE 8 – Intermarriage

Let me give you another example of a more liberal Orthodox perspective, and this from Rabbi Avram Mlotek, a graduate of YCT and a member of the Open Orthodox Torat Chayim organization.

Mlotek, like many other religious leaders in the US, wishes to try and identify a healthy way for Orthodoxy to address the huge percentage of intermarriage. And on this point I agree. However, in a 2017 article titled ‘Time To Rethink Our Resistance To Intermarriage’, he concluded his remarks by trying to invoke Torah values in direct conflict by Torah laws, saying:

The medieval French commentator Rashi noted that a city that was truly strong did not have walls. In order for the Jewish people to be a light unto the nations, it’s time we revisit our tribalistic approach toward intermarriage and our highly divisive conversion practices. Instead, welcome “the other” into the Jewish family. The rest is commentary.”[6]

Let me be clear, and here I speak with personal experience, I fully acknowledge that intermarriages are difficult, complicated, and can create tension in a family and a community. But I don’t think that ‘revisiting our tribalistic approach’ is an acceptable response that shows any regard for Torah, Tanach, Chazal, Halacha and tradition, and I think that invoking Rashi to justify a practice that he undoubtedly and absolutely opposed is nothing short of obscene.

Before I go on I want to say that if you feel that the past few examples are less compelling than my first few examples, please think again, because I – for one – think that the protection of Shabbat and the rising rate of intermarriage is an even greater existential threat than thick mechitzot where the Torah cannot be seen, men who wish to switch seats on a plane, or sheitels that can’t be advertised. And yet what I find is that many in the Modern Orthodox world are prepared to call out some of these, but not others, and while when it comes to Chillul Shabbat we are told ‘what others do is none of your business’ and ‘live and let live’, it is noteworthy that this doesn’t apply when directing criticism towards chareidim.

CASES 9 & 10 – Abuse & Aguna

As I am nearing towards the end of this presentation, let me briefly mention two further topics – abuse & agunah, and I am being brief here simply because topics should be clearly evident and should not require much elaboration, yet their omission in this talk would be quite wrong.

In terms of abuse let me be clear that any attempt to invoke classic Jewish texts dealing with the laws of mesirah to protect abusers is – pure and simple – a case of being Megaleh Panim B’Torah shelo kehalacha and an abuse of Torah as a defense for things that the Torah finds indefensible.

In terms of agunah, it should go without saying that anyone who chains another party – and in most cases, women – in a dead marriage is an abuser, and no Torah justification can or should be offered for their behaviour. Moreover, where Battei Din – and here I must stress I am not thinking of any particular institution but instead making a general remark – enable such behaviour, they are enabling the abuse of Torah as a defense for things that the Torah finds indefensible.

Conclusion

I began by noting how we are in a period of time when our task is to reaffirm our commitment to Torah and ask ourselves whether our lives are aligned with Jewish law and Jewish values, and I for one can think of a few areas where I need to undertake some recalibration – and perhaps you do too. At the same time, like Rav Kook remarked, we also need to consider whether we are doing enough to improve our Jewish community as well as the wider Jewish world.

So this Ellul, Rosh Hashanah and Yom Kippur lets consider what we do in our name, and also what we attribute in the name of God.

Of course some may claim that it is our right to interpret halacha as we wish – surely לא בשמים היא. Yet what I have noticed and what I have explained is that while this principle is often invoked to justify policies more liberal orthodox circles, it is not cited with respect to the regularly criticisms towards our chareidi brothers and sisters, and that if Jewish unity is so important to us, then this needs to be applied consistently.

However, if we can only see how Torah is used to defend things that the Torah finds indefensible in other Orthodox communities, then this shows that our loyalty is not to Torah but instead to our own ideology.

[1] Jonathan Sacks, Not in God’s Name p. 3

[2] http://podcast.headlinesbook.com/e/6317-halachos-of-parnassah-and-the-tuition-crisis/

[3] https://www.timesofisrael.com/jerusalems-first-station-to-remain-open-on-shabbat/

[4] Rabbi Jonathan Sacks, One People? Tradition, Modernity and Jewish Unity p. 39

[5] https://blogs.timesofisrael.com/let-us-violate-shabbat-so-as-to-sanctify-it/ 

[6] http://jewishweek.timesofisrael.com/time-to-rethink-our-resistance-to-intermarriage/

 


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