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Not long after he accepted chairmanship of the Jewish Agency, former Israeli MK Isaac Herzog referred to intermarriage as a “plague” that required a “solution.” One might expect this sort of rhetoric out of an Orthodox rabbi, but not from the head of the Jewish Agency, whose mission is “to connect the global Jewish family.” Herzog subsequently clarified, “A Jew is a Jew is a Jew, no matter which stream he belongs to, if he wears a skullcap or not.”

While “a Jew is a Jew” does not appear in that exact form in traditional Jewish texts, the Rabbinic analogue can be found in the Talmud. Commenting on Joshua 7:11, R. Abba b. Zavda says, “even though he has sinned, he is still ‘Israel’”.¹ Meaning, a Jew who sins is still part of the Jewish people. This is a fundamental concept for Jewish outreach among those who try to ignite the latent “Jewish spark” within all Jews.

At the same time, “a Jew is a Jew” hits at the core issues of inclusion and exclusion in the Jewish community. This is a particularly contentious issue in Israel where non-Orthodox denominations lobby for official recognition and legitimacy in the Jewish state. As discussed at length in a previous podcast series, the politics of exclusion has been a constant theme throughout Jewish history. And as we will see in this post, certain people may be halakhically Jewish, but may still be excluded from society due to their actions. The point of this entry is to differentiate between the status of one’s Jewish identity and one’s role in a Jewish society, in that the former does not guarantee the latter.²

Excommunication

The most obvious example of social sanction is the herem, often translated as “excommunication.” Herem is a social ban in which an individual follows certain practices of mourning such as not getting a haircut or doing laundry, and if someone dies while ostracized, the court places a symbolic stone on the person’s grave.³ Excommunication was considered a severe punishment, with Rav likening it to a form of death and Shmuel comparing it to an oven which can never be fully cleaned.⁴

A common reason for being put under this ban was for denigrating the Sages. This does not only refer to insults but also for disparaging Rabbinic laws such as hand washing,⁵ not observing the second day of Yom Tov outside of Israel,⁶ or not following the judgment of the court.⁷ It is also worth mentioning that excommunication may not be abused. Those who put others in herem incorrectly face excommunication themselves.⁸

Maimonides compiles twenty-four reasons why a person would be subject to excommunication,⁹ some which we will see later.

Specific Transgressions

Independent of herem, there are other restrictions for those who fail to follow Jewish law. One general rule is that people may participate in what they observe, but may be excluded from what they do not. For example, someone who does not keep kosher loses a presumptive status of trust when comes to kosher slaughter.¹⁰ Someone who doesn’t believe in the eruv cannot join in one.¹¹ Priests who reject the Temple service have no portion in the priesthood.¹²

The above applies when someone transgresses to fulfill a personal desire. But someone who transgresses out of spite faces a higher degree of exclusion to the point that such a person is not redeemed from captivity,¹³ and even be classified as a sectarian.¹⁴ 

Other transgressions are severe enough that their ramifications extend beyond a specific infraction. For example, sacrifices are accepted from sinners of Israel in the hopes that they repent, except for idolaters and those who violate Shabbat in public.¹⁵ While these individuals retain their Jewish identity,¹⁶ they have also removed themselves from the Jewish community by their actions.

Misleading Leaders

Aside from individuals who sin for themselves, Rabbinic Judaism holds particular contempt for those who entice others to sin. A “rebellious elder” who instructs people contrary to the high court faces capital punishment.¹⁷ Even those who do not meet the technical requirements to be a rebellious elder are still sanctioned for teaching Torah in opposition to the law.¹⁸

According to the Yerushalmi, whoever prevents the masses from performing a commandment must be excommunicated,¹⁹ as should someone who causes the masses to “desecrate God’s name,”²⁰ a category which includes sinning.²¹ Furthermore, someone who causes others to sin will not have an opportunity to repent.²²

While there is some latitude for leniency regarding those who were not raised in a halakhic tradition,²³ no such latitude is given for those who actively promulgate to others actions which are contrary to Torah.²⁴

A Confederacy of the Wicked

The above examples all refer to individuals, but we also find evidence of exclusion for an entire collective.

B. Sanhedrin 26a What is [the reference to] ‘a confederacy of wicked men’? — [It is as follows:] Shevna [Chamberlain of the Palace of King Hezekiah (Is. 22:15)] expounded [the law] before thirteen myriads, whereas Hezekiah expounded it only before eleven. When Sanheirev came and besieged Jerusalem, Shevna wrote a note, which he shot on an arrow [into the enemy’s camp, declaring]: Shevna and his followers are willing to conclude peace; Hezekiah and his followers are not. Thus it is written, For lo, the wicked bend the bow, they make ready their arrow upon the string. So Hezekiah was afraid, and said: Perhaps, Heaven forfend, the mind of the Holy One, blessed be He, is with the majority; and since they wish to surrender, we must do likewise! Thereupon the Prophet came and reassured him: Say ye not a confederacy, concerning all of whom this people do say, A confederacy; it is a confederacy of the wicked, and as such is not included in the counting [for the purpose of a decision].

תלמוד בבלי סנהדרין כו:א מאי קשר רשעים? שבנא הוה דריש בתליסר רבוותא, חזקיה הוה דריש בחד סר רבוותא. כי אתא סנחריב וצר עלה דירושלים, כתב שבנא פתקא, שדא בגירא: שבנא וסיעתו – השלימו, חזקיה וסיעתו לא השלימו. שנאמר כי הנה הרשעים ידרכון קשת כוננו חצם על יתר. הוה קא מסתפי חזקיה, אמר: דילמא חס ושלום נטיה דעתיה דקודשא בריך הוא בתר רובא, כיון דרובא מימסרי – אינהו נמי מימסרי. בא נביא ואמר לו: לא תאמרון קשר לכל אשר יאמר העם הזה קשר. כלומר: קשר רשעים הוא, וקשר רשעים אינו מן המנין

Jewish law normally follows a majority,²⁵ but not everyone’s opinion is considered to be part of the consensus. In this case, because Shevna and his followers were considered “wicked,” even though they held a numerical majority, their opinion essentially did not count.

It is fair at this point to ask at this point is who is classified as “wicked.” Minimally, this includes people who transgress Biblical prohibitions for which the punishment is lashes,²⁶ such as eating non-kosher food,²⁷ or anything more severe.²⁸

The ‘Am Ha’Aretz

For a final example of social exclusion, I would like to include the example of the ‘am ha’aretz. The term literally means “people of the land,” and is found in the Bible to refer to the masses.²⁹ In Rabbinic Judaism, the ‘am ha’aretz refers to someone who is either lax in the observance of certain commandments³⁰ or is ignorant/foolish.³¹

There are several Rabbinic statements encouraging separation from the ‘am ha’aretz. For example, someone who wishes to become trustworthy cannot be a guest in the house of an ‘am ha’aretz.³² People are also discouraged from sitting in the assemblies of the ‘am ha’aretz³³ or even being neighbors.³⁴ The Talmud is especially concerned with a daughter of a Torah scholar or a priest marrying an ‘am ha’aretz³⁵ or a man marrying the daughter of one.³⁶

We also find regarding the ‘am ha’aretz an explicit differentiation between identities of status. One of the most prestigious positions in the Jewish society is that of the High Priest. One of the lowest statuses one can have is that of the mamzer, who is a product of certain illicit relationships and is prohibited from marrying into the regular Jewish community, as are any of the mamzer’s descendants.³⁷ And yet, if one is faced with the choice of either saving the life of a High Priest who is an ‘am ha’aretz or a mamzer who is a Torah scholar, the mamzer takes precedence.³⁸ The intrinsic identity of halakhic status is secondary to the identity people make for themselves.

Conclusions

Many years ago I wrote that all communities are pluralistic, but only up to a point of their choosing. The above limitation, defined by Torah, is just one example of how Jewish communities shape their boundaries. Those on the more liberal ends of Judaism define their own boundaries for exclusion as well, based on their own standards and interpretations. This has become particularly noticeable in the age of Trump. Jane Eisner, Editor-in-Chief of the Forward bluntly put it, “Jews should disown Stephen Miller” for promoting policies that were contrary to her understanding of Judaism.³⁹ Those who take this approach may understand and define the boundaries of Judaism differently, but do not deny social marginalization and exclusion as a concept, and may even view it as a social and moral necessity.

There are rabbis and Jewish communities who adopt a more welcoming approach towards all Jews and do so without compromising their own beliefs. But the claim that there is some religious⁴⁰ obligation to accept all Jews on their terms and by their own definitions⁴¹ (including legitimizing all beliefs and practices as “Jewish”) is not only rejected by Torah itself but in practice by Jews of all streams. While “a Jew is a Jew” may hold true regarding the halakhic status of Jewish identity, Torah sanctions and excludes from society those who do not abide by its norms.⁴²

1. אף על פי שחטא, ישראל הוא – B. Sanhedrin 44a
2. It is worth mentioning the instances of karet, where certain transgressors are literally “cut off” from the Jewish people. Some examples include not performing circumcision (Gen. 17:14), eating leavened bread over Passover (Ex. 12:15), violating the Sabbath (Ex. 31:14) or Yom Kippur (Lev. 23:29), or violating the laws of family purity (Lev. 20:18). I did not include these examples because in the Rabbinic tradition the punishment of karet is not social ostracization or exclusion, which is the current primary focus. According to Talmudic source, karet refers to an early death (B. Moed Katan 28a), and later commentaries include additional opinions.
3. B. Moed Katan 15a
4. B. Moed Katan 17a. Reish Lakish disagrees with Shmuel saying the taint of excommunication leaves when the ban is lifted, but during the period of excommunication, the ban affects the entirety of a person.
5. B. Berachot 19a
6. B. Pesahim 52a
7. B. Moed Katan 14b
8. B. Moed Katan 17a
9. Hilkhot Talmud Torah 6:14
10. B. Hullin 3a
11. M. Eiruvin 3:2, M. Eiruvin 6:1-2
12. B. Menahot 18b
13. B. Gittin 47a
14. B. Avoda Zara 26a-b. A parallel passage in B. Horayot 11a uses “Sadducee” instead of “sectarian.”
15. B. Hullin 5a. Cf. B. Eiruvin 69b
16. Even if someone who converted according to halakhah subsequently retracted his conversion, his marriage to a Jewish woman is still valid (B. Yevamot 47b).
17. M. Sanhedrin 11:1-2
18. M. Avot 3:11, M. Avot 5:8
19. Y. Mo’ed Katan 3:1 81d
20. Y. Ta’anit 3:10 67a
21. As mentioned in the Sacred Slogans entry on “Light unto the Nations” and in greater detail my class on Chillul Hashem
22. M. Avot 5:18
23. The category is called, “a child who was imprisoned among the gentiles” referring to those who were completely unaware of Jewish law. Such individuals may be treated more leniently up until the time they are taught. See B. Shabbat 68a.
24. See for example Maimonides who distinguishes between Zadok and Baitus and their immediate followers who rejected the Oral Law, but not the children of the followers (Mamrim 3:3). Those who assume the authority to preach contrary to Jewish law and actively leads others astray then becomes like Zadok and Baitus themselves (Teshuva 3:10)
25. Ex. 23:2
26. Mekhilta D.R. Shimon b. Yohai 23:7
27. B. Sanhedrin 27a
28. E.g. B. Yevamot 25a
29. E.g. Gen. 23:7, 23:12-13
30. M. Avot 2:5, B. Berakhot 47b
31. B. Berakhot 47b, B. Berakhot 61a, M. Avot 5:10, B. Shabbat 152a
32. M. Demai 2:2
33. M. Avot 3:10
34. B. Shabbat 63a
35. B. Pesahim 49a
36. B. Pesahim 49a-b
37. Deut. 23:3, B. Yevamot 23b
38. M. Horayot 3:8
39. I have learned not to read too much into headlines because those are often written by editors rather than the authors. However, since Ms. Eisner is the Editor-in-Chief, I am assuming she chose her own headline.
40. I stress “religious” to contrast with political, recognizing they often overlap in Israel.
41. All the above sources assume the individuals in question are in fact Jewish according to the standards of Torah. This too is a point of contention as denominations have their own standards and demand official recognition of Jewishness on their own terms.
42. M. Kiddushin 1:10