A Conservative Compromise

Conservative Judaism recently made headlines with their reevaluation of homosexuality in Jewish law. Although Conservative Judaism rejected homosexuality in 1992 (PDF), there was a request to reconsider the issue. When we covered homosexuality from an Orthodox perspective in “Lonely Men of Faith1 we referenced the debate between Rabbi Elliot Dorf and Rabbi Joel Roth, but there has obviously been significantly more discussion on the matter culminating in yesterday’s decision. From what limited information we have at this time, this new decision is hardly as groundbreaking as people might think.

Before we begin, we need to point out two essential distinctions. First, there is the difference between Conservative Judaism’s Committee on Jewish Law and Standards (CJLS) and the Jewish Theological Seminary (JTS). The former sets the official policy for Conservative Judaism, the latter ordains Rabbis. While Conservative Jews might not follow the CJLS’s halakhic rulings, it is expected that the Rabbinate would follow its own halakha.2 Based on this relationship, JTS would not be able to violate an explicit ruling of the CJLS.
This leads to the the second important distinction. Regardless if the CJLS permitted homosexuality, the decision to ordain homosexuals is entirely in the discretion of JTS.
There is a great deal of confusion in this relationship for several reasons. First, there is so much overlap within these bodies since with few exceptions the Rabbinic leadership of Conservative Judaism are alumni of JTS. Second, the CJLS is notoriously private with its decisions often withheld from the public. Although the lack of transparency is curious from a progressive institution it also shields the CJLS from review.
Since we are not privy to the CJLS’s formal decisions and the reports themselves, we’ll have to make do with the AP’s summary:

One policy maintains the prohibition against gay clergy. Another, billed as a compromise, maintains a ban on male sodomy but permits gay ordination and allows blessing ceremonies for same-sex couples. The third policy supports the ban on gay sex in Jewish law and notes that some gays have successfully undergone therapy that changes their sexual orientation.

Assuming this report is correct, at no point did the CJLS permit homosexual behavior. At best, one of three opinions allows for people of a particular sexual orientation to become clergy without condoning what is biblically prohibited.3 As with the decision to ordain women, there is no explicit prohibition to ordain someone who happens to be gay. In which case, so long as the prohibited action is not violated, gays could theoretically be included in the Rabbinate.
Of course, not everything which can be done should be done. To this end, let’s examine JTS’s official press release which tacitly describes their approach to Conservative Judaism as a whole.

First, let me [Arnold Eisen] emphasize that the halakhic authority for the Conservative Movement and the institutions associated with it rests with the CJLS. The Law Committee has split on the status of homosexual behavior according to Jewish law; its rules and those of the Rabbinical Assembly regard each of the opinions authorized as equally legitimate.

Translation: The Chancellor-Elect appropriately begins by placing the halakhic authority with the CJLS and not with the Seminary. However, while he mentions that the CJLS has “split,” Eisen avoids all mention as to what what was actually discussed and how the CJLS was divided.

The ball is thus in our court with regard to the question of ordination of gays and lesbians at JTS – a decision regarding admission and graduation requirements that we will treat as such and not as the matter of law that stood before the Law Committee. We at JTS are not poskim. We will not be adjudicating matters of halakhah.

Translation: JTS is not responsible for halakhic decisions and the CJLS is not responsible for their implementation. This statement provides adequate cover for both parties. If JTS decides to be strict, it is their own decision not the “official” policy of Conservative Judaism. Similarly, even with a permissive ruling the CJLS cannot be held accountable if JTS decides not to ordain Rabbis. On the other hand, if JTS does allow homosexual Rabbis, the CJLS can claim that the final decision to actually ordain homosexual rabbis was not theirs but the Seminary’s.
Here’s the crucial quote:

However, we are going to consider what we think best serves the Conservative Movement and larger American Jewish community. We know that the implications of the decision before us are immense. We fully recognize what is at stake. This is why we are determined to conduct a thoroughgoing discussion of which we can all be proud no matter what outcome is eventually reached.
We have commissioned a survey with Stephen M. Cohen to determine where rabbis, Conservative Jewish laypeople, and the movement’s leadership stand on the issue. This data will be in hand before JTS reaches its decision on the matter.
I have invited the heads of the other seminaries affected by the CJLS decision – Machon Schechter in Jerusalem, the Seminario Rab?nico Latinoamericano in Buenos Aires, and the Ziegler School of the University of Judaism in Los Angeles – to join me for a frank airing of the matter.
JTS students will be informed about the details of the Law Committee decision in coming days and will over the next month or so have a chance to debate with one another the pros and cons of the ordination of homosexuals. They will also have the opportunity to make their voices heard by faculty and administration.
Through the Campus Life Committee, the Deans of Student Life and the five schools will continue to consult and plan for both possible outcomes of this process.
Faculty will hold several discussions of the matter in coming weeks with the aim of making a clear and reasoned determination.

Translation: We know this will be controversial and we’re not going to take a stand until we know what the ramifications will be among the movement itself. This approach makes perfect sense for two reasons. First, within the Conservative hermeneutic, Jewish law is primarilly reactive to the stated or perceived needs of the community and so their input would be required. Of course the main reason for this global survey is simply pragmatic. Conservative Judaism’s leadership is well aware that this issue could easily cause another schism within the movment, one from which the movement would not be able to withstand. If JTS alienates enough of its constituency, the future of Conservative Judaism will be in jeopardy since people will either become unaffiliated or seek out other alternatives. In other words, for as much as Conservative Judaism attempts to maintain Jewish traditions, it is also trying to conserve itself.

Let me note that this critical phase of the discussion, and the very debate itself, is a hallmark of JTS – and Conservative Judaism more generally – of which we can be proud. We have the burden and privilege of this debate not because we are in the middle, but because of our commitment to halakhah on the one hand and full immersion in the culture and society of the present on the other hand. We are dedicated to thoughtful change as an essential element of tradition – which is not to say that the change proposed to us now is right or necessary, but that the process of considering it thoughtfully, whatever we eventually decide, is to us inescapable and welcome. One could say that such debate defines us – and that, well-conducted, it strengthens us. Of course debate on this and similar matters has the potential to wound us as an institution and a movement. It also, however, has the power to remind us of what we stand for, and why despite our differences – or even because of them – we choose to stand together.

Translation: Preemptive damage control. Someone isn’t going home happy, but we’d like to keep the carnage to a minimum.
And there you have it. If it’s good for the movement, JTS will accept homosexual students otherwise, they will likely table the discussion until the public opinion changes. Still, I’m curious to see what the ramifications are of even having the debate. One reaction could be that if an explicit prohibition can be nullified for social reasons then so could any other law or ritual. It is also possible that people would be confused between Conservative and Reform. Of course, the debate or change may or many not matter to the constituency.
Furthermore, assuming JTS does in fact decide to admit homosexuals I’d be curious to see how they follow the CJLS ruling. Since even the most lenient CJLS position still prohibits homosexual intercourse, would JTS admit openly sexually active students in defiance of the CJLS? I’m sure JTS could initially adopt a don’t ask don’t tell policy, but assuming someone’s private activities do become public, how would JTS adhere to their commitment to Conservative halakha?
In any event, it should be an interesting story to follow.
UPDATE: I have since obtained a copy of the actual teshuva in question, and posted my response.

1. That post is a book review of Rabbi Steve Greenberg’s book “Wrestling with God and Man,” the title of which ironically comes from this week’s parasha of Vayishlach (Gen 32:29).
2. This however is not the case. Around 2000-2001, dean Rabbi William Lebeau sent an internal memo to JTS criticizing the students’ observance (or lack thereof) by Conservative’s own standards of halakha. Not surprisingly, this memo was not well received.
3. Though not explicitly prohibited, homosexual marraiges are not viewed favorably in the Talmud. In B. Hullin 92b ‘Ula specifies three practices the B’nei Noach accepted upon themselves, the first one being “they did not write marriage certificates for homosexuals.” Meaning, even if they practiced homosexuality, they did not formalize it as normative.

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