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What’s Conservative About Conservative Judaism?

I suppose I have to say something about this item, flagged by Rod Dreher, who asks:

As I understand it — and please correct me if I’m wrong — Orthodox Judaism sees halachic law as binding, and therefore rejects same-sex marriage. Reform Judaism does not see halacha as binding, therefore accepting same-sex marriage. Conservative Judaism does call halacha binding, but is changing halacha fundamentallyto sanction same-sex marriage. In other words, Conservative Judaism refuses the clear teaching of the Hebrew Bible and thousands of years of binding rabbinic teaching to accept this radical halachic innovation — and yet still sees itself as faithful to halacha.

This is untenable.

“This is untenable” is probably the right conclusion – but I suspect I have different reasons for saying so than Dreher does. But I’d like to offer my own interpretation of some of the fundamental differences between the three major Jewish movements before moving on to the actual subject at hand.

The three major “movements” within Judaism originate in the 19th century, first with the innovation of Reform Judaism, which rejected the vast corpus of Jewish law in an explicit effort to modernize the religion along German Protestant lines; then with neo-Orthodoxy in reaction to reform, attempting to re-ground traditional rabbinic Judaism in philosophical and hermeneutic terms that would be credible at the time (again, this is the mid-19th century); and finally with Conservative Judaism, which broke away from Reform Judaism, asserting that, rather than being rendered suddenly invalid by modernity, traditional halacha should be understood as historically contingent, evolving according to the needs of the Jewish people over time. Dividing the Jewish religion up in this fashion is increasingly anachronistic and doesn’t do justice to the wild variety within Orthodoxy or the flourishing diversity of congregations on the religious left that aren’t formally affiliated with either the Conservative or Reform movements, but the hoary three-fold division is still salient for Dreher’s question.

The formal structural difference between how Orthodox and Conservative Judaism look at halacha is that from an Orthodox perspective, halacha doesn’t get revised, though it does develop, organically, in a kind of common law fashion, with individual rabbis making rulings on new issues based on established precedent and their own view of how this precedent should be applied. Whether those rulings, in turn, are accepted by other rabbis is up to them.

Conservative Judaism, by contrast, has a central body responsible for deciding what the halacha is – the Rabbinical Assembly. It decides which interpretations of the law are valid (and sometimes it decides that multiple interpretations are valid) and which are not. And it has the power to revise the law as needed, either by rejecting an earlier authoritative rabbinic interpretation in favor of a novel interpretation of scripture, or by (in an extraordinary case) outright “correction” of scripture (on the basis of some higher principle with its own scriptural warrant).

I’m not going to go into the formal justifications the RA has for asserting this power – they have articulated justifications which, needless to say, are not accepted by any Orthodox rabbi I’m aware of. The point is: the halacha as formally understood by the Conservative movement doesn’t work quite the same way as the halacha as understood by Orthodox rabbis. The former is centralized, the latter de-centralized; the former is subject to formal revision, the latter only to common-law-style development.

I suspect that Dreher thinks it isn’t tenable to proclaim fidelity to a tradition that can be radically revised. But I don’t think that’s the case. The LDS Church undertook at least two extremely radical revisions of its practice, banning polygamy and permitting African-American males into the Mormon priesthood. I don’t see any evidence that the LDS Church has failed to sustain itself in the wake of these revisions. But the Conservative notion of halacha doesn’t line up with the sociology of Conservative practice. The Conservative vision assumes a community that is interested in maintaining communal standards of practice, holding those standards – even if they change over time – as the glue that holds the community together. And that community doesn’t really exist. What exists in practice is a variety of congregations with different communal practices as congregations, composed of individuals with different levels of observance, each with a high regard for their own ability to decide both what traditional practices are meaningful to him or her and how to construe that traditional practice. The liturgy is still basically the same from congregation to congregation, but even that is subject to some variation.

This approach to the tradition – using it, effectively, as a resource for personal engagement with history, with God, with states of spiritual being, what-have-you – is what the Reform movement has evolved towards, as part of its rapprochement with traditional practice. That practice is no longer anathematized as part of a modernization project; rather, it is valorized as historically important and – potentially – personally meaningful. But it’s voluntary, and subject to individual interpretation as to how one uses it. That’s pretty much how most Conservative Jews look at halacha, albeit they tend to be more small-c conservative in their interpretations.

So I don’t think the Conservative approach is tenable because, basically, Conservative Jews don’t look on the RA the way faithful Mormons look on the First Presidency. Reform Judaism appears to be doing just fine, though, as is the unaffiliated Jewish religious left, and I expect that Conservative and Reform Judaism will grow closer together over time, even as the gap between both and Orthodox Judaism grows.

As for the specific question at issue – recognizing gay marriage as a religious ceremony – I don’t know enough about the specific decision to opine in any detail. Traditionally, marriage, in Judaism, requires almost nothing; it is the acquisition of a woman by a man, and its primary legal consequence is to make sexual relations between that woman and any other man adulterous, and to make any other marital contract between that woman and another man invalid. The marriage contract is a rabbinic document designed to provide the woman with some protection against a capricious man who might abandon her; it was a progressive innovation in the context of an overwhelmingly patriarchal world. The marriage ceremony is basically a celebration of the founding of a new Jewish home, linking that event back to Eden and forward to the restoration of Jerusalem in the messianic age. So from a traditional legal perspective, a gay union would have nothing to do with marriage, and from a ceremonial perspective I don’t see why a gay union couldn’t be celebrated as the founding of a Jewish home just as much as a straight one.

From a Conservative Jewish perspective specifically, nobody within the Conservative movement is going to endorse the traditional concept of marriage between heterosexuals in the first place, because it’s wildly inegalitarian. Conservative rabbis have extended the concept of adultery to include a husband cheating on his wife with an unmarried woman (which does not fall under the traditional definition), and are willing to command a husband to offer a divorce to his wife if she wants one, and to dissolve the marriage unilaterally if he refuses (which would not be permitted under traditional Jewish law – only a man can initiate a divorce). Once the radical inequality between men and women assumed by traditional Jewish law is thrown out, much of the traditional meaning of the marriage contract – the legal meaning, not the spiritual or ceremonial meaning – goes out the window as well. At which point I don’t think it’s so obvious that there’s any problem saying two men or two women can celebrate the founding of a Jewish home and call it marriage.

The biblical prohibitions on homosexual relations between men (there are no biblical prohibitions against lesbian relations) are another matter, but the Conservative movement dealt with these a number of years ago in a separate decision, and they aren’t necessarily dispositive for the question of same-sex marriage anyway.

about the author

Noah Millman, senior editor, is an opinion journalist, critic, screenwriter, and filmmaker who joined The American Conservative in 2012. Prior to joining TAC, he was a regular blogger at The American Scene. Millman’s work has also appeared in The New York Times Book Review, The Week, Politico, First Things, Commentary, and on The Economist’s online blogs. He lives in Brooklyn.

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