Who is our constituency? Who is out there? Whom are we meant to serve? The late Pinchas Pelli was fond of telling a story about two Lubavitch Hasidim who discussed the nature of the Jewish constituency and its role for the future. One said to the other: "The whole world is divided into 'them' and 'us'. No point talking about 'them.' Let's talk about us. Among us, the Jewish world is divided between Ashkenazim and Sephardim. No point talking about the Sephardim. Among the Ashkenazim, there are Misnagdim and Hasidim. No point talking about the Misnagdim. Among the Hasidim, there are Lubavitch and Satmer. No point talking about the Satmer. Among the Lubavitch, there are Farbrengung and Maskilim. No point talking about the Farbrengung Lubavitch. Among the Maskilim, there are only you and me, and you know how little you know."

Sectarianism sees the complex Jewish constituency narrowly. It finds its own identity by subtraction, exclusion, excommunication. Sectarianism is a form of idolatry, the worship of a part as if it were the whole. Sects are splinters of the whole. "If anything characterizes the thinking of Conservative Judaism," Chancellor Schorsch has recently written, "it is the desire to understand all of Jewish experience. Conservative thinkers do not isolate a single text or a single period and elevate it above all others. That quest for completeness, for embracing all Jewish experience leads to a fundamental recognition of diversity."

Seen whole, who is our constituency? Let others boast about their own victories, myopically count their few gains, discount all others. We who think whole need no national Jewish population study to teach us that the number of American Jews walking away from Judaism and the Synagogue outstrips those who are turning to it. We need no demographic studies to convince us that far far less than fifty percent belong to any Jewish institutions, secular or religious, or contribute to any Jewish cause or practice any committed pattern of ritual observance.

Asked in the Lachman-Kosmin City University Study "what is your religion", 1.1 million Jews answered: "None." These none-Jews are our constituency. The major constituency out there are comprised of the unaffiliated, disaffiliated and under-affiliated. They are our sons and daughters; they are within and without the congregation. They are our challenge. They must be won over.

They are Jews of modernity. The character of modernity is summed up in Peter Berger's phrase -- in the shift "from fate to choice." They will not be told what to eat, where to eat, when to eat; when to rest, where to rest, how long to rest; when to marry, whom to marry, where to marry; whom to mourn, how long to mourn, where to mourn. In short, modern Jewish consciousness is less proud in being chosen than in choosing.

They are not traditional Jews, not in the sense that the historian, Jacob Katz understands tradition: the belief that my public and private life can be regulated by law - and that my meaning and values are derived from "total reliance on the distant past".

And yet, for all their modernity, they are not apostates. For all their distance from religion, they express a yearning for "spirituality."

For all their vaunted autonomy they express a need for guidance to help them cope with their loneliness, the disharmonies of marriage, the estrangement from their children, the weightlessness of their career.

Ironically the same sociologists who described the autonomous self of modern consciousness argue that they are "underinstitutionalized" (Arnold Gehlen); that they seek structure, limitations, boundaries, rules. They feel abandoned, left to invent their own world.

When the poet, Robert Frost, was asked why he does not write in free verse, disregard the rules of metrical rhymes, he answered "because that would be like playing tennis without a net." Without a net every ball hit is in.

Halachah is the net necessary to play the game. How high the net, how wide the net is to be adjusted is secondary to the value of the game. The net is not the game. The Jews of modernity, paradoxically autonomous and in search of structure, will not be commanded or ordered; they must be persuaded, convinced of the nobility of the game and its importance for elevating the meaning of their life. How to persuade that constituency of the superordinate value of halachah is our major challenge.

I stress halachah because for Conservative Judaism, Halachah is the major ideological thrust. Any examination of our Rabbinical Assembly Proceedings, any look at the anthologies of our movement from Mordecai Waxman's Tradition And Change to Seymour Segal's Conservative Judaism And Jewish Law, makes it evident how much of our movement's culture is rooted in halachah.

So in his introduction, Seymour Segal writes, "The observance of Jewish law has been the main aim of the Conservative movement since the very beginning. The main goal of Zechariah Frankel and Solomon Schechter was to defend the importance of halachah against the attacks of the Reformers." Mordecai M. Kaplan in The Meaning of God, writes: "If Judaism is true to itself it must concern itself preeminently with halachah". (p. 320)

If halachah is the centerpiece of our movement, where is the resonance of halachah in our lives? If Halachah consumes so much of our intellectual energy, where is it on our agenda? If halachah is that important, where is its passion expressed? Where is it heard? From the pulpit? From the platform of adult education? In the curriculum of our religious schools? Who hears or cares about the deliberations of the Committee on Law and Standards?

Our colleague, Neal Gilman, has just published a book on Conservative Judaism. He writes with revealing candor: "It is fair to say that the large majority of Conservative congregants remain ignorant of the debates of the Committee on Law and Standards. Most congregants would drive to the Synagogue and would use electricity on the Sabbath irrespective of the Committee's decision. But the very existence of the law committee and the decisions represents a centerpiece of the movement's culture."

Why is the matrix of that halachic culture so ignored by the laity? Again I turn to Neal's book to read "It is not surprising that the movement has failed to create a genuinely committed religious lay movement. How was its subtle and complex position to be communicated to the Jewishly undereducated lay person?" (page 116)

With all respect to Professor Gilman's analysis, here I beg to differ. The failure to communicate halachah is not due to the law's complexity or subtlety, nor to the lack of Jewish education or commitment by the laity. To place the blame on the shoulders of the laity commits a fallacy of displaced concreteness.

The failure lies elsewhere. The inaccessibility, felt relevance, the lifelessness of halachah and our ambivalence towards it have deeper roots. There is a quarrel within us and it must be lovingly pursued. How does Yeats put it? "The quarrel with yourself produces poetry; the quarrel with others produces rhetoric."

Rhetorically, we have described the quarrel as between halachists and anti-nomians, between followers of the Aggadah and the halachists, between traditionalists and modernists. But that is not the quarrel within us. There are no anti-nomians among us, no scoffers of tradition. Who then is it who anguishes against the "petrification of Halachah", who agonizes over "the demoralization of Jewish law", who is disturbed by the growing "chauvinism" of Jewish law? The warnings do not come from the cynical, the ignorant, the irreverent.

The warnings come from those who love halachah, who love the tradition and who defend it. Listen to our Orthodox colleagues including Rabbi Emanuel Rackman of Bar Ilan, openly lamenting the negative impression conveyed by those who on the one hand "may conserve the tradition but on the other hand alienate thousands of Jews from the law." (Encyclopedia Judaica, 1976/1977)

Listen to the confession of the Rosh Yeshivah of Har Zion, in Israel, Rabbi Aaron Lichtenstein: "Which of us has not at times been painfully aware of the ethical paucity of his legal resources?" It is Lichtenstein who condemns the false equation of Halachah and din, who protests those who would relegate moral conduct to the purely optional and pietistic.

Listen to the criticism of love against the "bookkeepers of tradition, the specialists without spirit." They come from deeply committed, intelligent Jewish laymen and rabbis like Professor Leon Roth, Ernest Simon and Samuel Hugo Bergman, from the Orthodox Jewish thinker Rabbi Eliezer Berkovitz and yivadlu l'chayim, Yitzchak Greenberg, Louis Jacobs and David Hartman.

Was Abraham Joshua Heschel an enemy of Jewish law and tradition when he warned against "pan-halachic theology", the mindset that turns the law into an icon. What led Heschel to declare that a Judaism confined to law "is not exactly one of the happiest products of the diaspora"? [The Insecurity of Freedom] What led Heschel to protest against those who narrow the scope of the law to the four cubits of the halachah and expel the Shechinah from the wide world of history.

But let me not hide behind the quotational skirts of others. I am speaking to friends and who but to friends can one confess? Confession they say is good for the soul though it may be not so good for the reputation.

I am concerned about the direction that Jewish law has taken within our movement. I fear that the halachah is becoming increasingly isolated from the moral idealism of Judaism. I fear that halachah, as it has been presented, suffers from a stenosis, a dangerous narrowing that has cut itself off from its moral and spiritual vitality, that it has become more an exercise of legal virtuosity, and in the process lost sight of its soul and goal.

How has this split between law and conscience occurred? It has taken place by a mind set that seeks to protect the integrity of the law even at the price of ignoring the integrity of the Jewish spirit.

That became clearer to me after reading a celebrated article by a former Talmud professor at the Jewish Theological Seminary, Professor Weiss Halivni. His article appeared in Wolfe Kelman's Festschrift, Perspectives of Jews and Judaism. Professor Weiss-Halivni's article is intriguingly entitled "Can a Religious Law Be Immoral?" He argues that the rabbis of the classic halachah, the rabbis of the Talmud, never consciously used morality as the ground for abrogating Biblical law, even when they sensed the immorality of the religious law. As evidence he cites the passage in Deuteronomy 23:2 "No mamzer, no bastard shall enter into the assembly of the Lord, even to the tenth generation shall none of his enter into the assembly of the Lord." A mamzer, the offspring of an adulterous or incestuous union, is doomed to remain outside the community unless, by rabbinic rule, he may marry either a female mamzeret or a proselyte to Judaism. Even so, their children remain mamzerim, a taint that they carry throughout their generations. This is universally admitted to be a morally outrageous law. But Weiss- Halivni points out that despite its patent immorality, the rabbis did not exercise their moral judgment to over-rule the law because the rabbis would not jeopardize the immortal integrity of the Biblical law. To advance his point, Professor Halivni-Weiss cites a passage from Leviticus Rabba (chapter 32) in which Daniel, the tailor protests this injustice, cries out against the tears of these oppressed illegitimate children. "If the parents of these poor bastards committed transgression what concern is it of these poor suffering children?" The hands of the Sanhedrin, the hands of the halachic court move against the oppressed with no one to console them. Then, the Midrash continues, the Holy One declared "It is upon Me to comfort them." In the time of Messiah they, the illegitimate who are wronged will be seated on thrones made of pure gold. Halivni-Weiss notes that while the immorality of the law is noted, nothing is done halachically to abrogate the apparent injustice of the biblical law.

That saddens me. What does it mean that the oppressed are to wait for God to intervene? And where are the Rabbis? Where is the rhetoric that calls on the partners of God, shutafim la-kadosh baruch hu, to repair the injustices done to the innocent? Where is the teleology of halachah, the grand moral design of Jewish law that is cited in the Talmud? "And thou shalt do that which is right and good in the sight of the Eternal One;" "That thou mayest walk in the ways of good men and keep the paths of righteousness;" "for her ways are ways of pleasantness and all her paths are peace."

The implications of the Weiss-Halivni interpretations of the law are monumental. Analogous reasoning has been and is used today in the name of protecting the integrity of God's word. The logic of that mind set calls for the "halachic suspension of the ethical." In effect it means that a religious law can indeed be immoral. That interpretation of halachah rationalizes a split between the legal text and moral conscience and allows the law to supersede morality. That is precisely what the loving critics of halachah call the "demoralization of halachah."

The amoral character of that kind of halachah comes up again and again. It looms large in the contemporary debate over the proper Jewish attitude towards homosexuality. For one of the major arguments affirming the biblical stigmatization of homosexuality as an "abomination" is predicated on preserving the integrity of the biblical law no matter what. So, as one of the leading and learned proponents of the text in Leviticus argues, following the Weiss-Halivni position, no matter that kind of evidence you can bring -- psychological, biological, socio-organic or ethical -- even if the evidence is absolutely correct, even if the Torah misunderstood the nature of homosexuality - there can be no cogent or compelling reason to overturn the law. "The document called the Torah embodies the word and the will of God which it behooves man to obey, and is therefore authoritative." (The Halachic Process, Joel Roth, page 9)

Ethics, like psychological or physiological evidence, is at best extra-legal. It is to be acknowledged as a datum but it is not to be used as a rationale to change the law.

You may acknowledge the contributions of Wissenschaft des Judenthums, be aware of the evolutionary character of the law but in the final analysis you may think treif but pasken glatt kosher.

Daniel the tailor will have to wait for God to comfort those wronged by the law and so. I submit to you that this is not the character of halachah that speaks to the heart and soul of our people. This is not the kind of halachah that will elicit passion and enthusiasm from those who are to be persuaded of the sacredness of the law. The de-moralization of the halachah contributes to the de-moralization of our movement; to the luke warmness with which halachah - the crown of our movement - is greeted.

The quarrel within us is not whether we need halachah but over the kind of halachah we require to lend spirituality to our tradition.

I am not a halachic scholar but I am convinced that morality played an important and conscious role in the halachic tradition. But I do know as a Jew and as a Rabbi what seizes me about our tradition and makes my heart leap with joy. And it certainly is not the denigration of the human Jewish ethical sensibility. To the contrary, I have been inspired by the many sources of our tradition that repudiates the legal fundamentalism that choke the "halachic conscience". One of these rabbinic sources is found in Bamidbar Rabbah (chapter 33). With unusual detail, it celebrates the moral courage of Moses, our teacher. Three times Moses rose to challenge God's halachah, to challenge the word of God, posek haposekim, the decisor of all decisors. To cite one instance of such a confrontation, Moses hearing no less the ten commandments from God who declares: "I the Lord God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate Me". Then Moses rose before God and intervened with moral argumentation. "Ribbono Shel olam - master of the universe. Many are the wicked who have begotten righteous men. Shall the righteous bear the iniquities of their fathers? Terach worshipped idols but Abraham was a righteous man. King Hezekiah was a righteous man, but his father Achaz was wicked. King Josiah was a righteous man but his father Amon was wicked. Is it proper that the righteous should be punished for the iniquity of the fathers? Moses challenges the integrity of God's spoken word. And how does God respond? "By your life Moses. You have instructed Me. I shall correct My own words and confirm yours."

That is the soul of halachah. Not a trembling obedience to the text; not a shrug of helplessness before the text, not a waiting for God to comfort and console but to know that God's name is truth and justice and compassion that dramatizes the moral competence of men and women created in God's image to break the fetters of injustice.

Why have we become so tremulous before the text? Why have we allowed textual bibliolatry to eclipse our moral sensibility?

Note that the moral conscience of Moses did not lead to anarchy, to the simple nullification of the law. For after Moses' objection to the words of Exodus, God reveals himself in Deuteronomy (24:16), declaring: "The fathers shall not be put to death for the children neither shall the children be put to death for the fathers". Moses is not told by God that he is an anti-nomian. Moses is not charged with lése majesté, treason against the integrity of God's word or will. Moses appeals to God against God in the name of God.

Morality cannot be pushed aside as another extra-legal datum. Morality is the essential attribute of halachah. The answer to Weiss-Halivni's question -- "Can religious law be immoral?" -- is "no." The answer to Daniel the tailor should be: "By your life, Daniel, you are right. Daniel you have spoken out of the collective conscience of our people. You have heard My voice in the words of Ezekiel -- 'As I live, all lives are Mine, the life of the father and the son. The son shall not bear the iniquity of the father.'"

Out of the Mosaic tradition, the rabbis ought to be emboldened to nullify the category of mamzer. It ought not wink at the issue, not play "dumb" with the mamzer, not avoid the issue by simply not asking about his parent status. It ought not countenance the compensation that allows the mamzer to marry a proselyte, on the grounds that the Jew by choice is equally blemished. Why does Jewish morality seem to embarrass us? Why are Jewish moral arguments considered beyond, outside the law? almost as if they were foreign, alien nations. Have we forgotten that Rabbi Isaac of Corbeille, the Tosafist and author of Sefer Mitzvoth Katan lists those acts of compassion and justice "beyond the measure of the law" -- lifnim meshurat ha-din -- as one of the six hundred and thirteen mitzvoth incumbent on the Jew? How significant Rabbi Aaron Lichtenstein's argument that the moral category lifnim meshurat ha-din should be translated not as "before or beyond the measure of the law" but "within the measure of the law."

The inspired rabbinic passages I have quoted must be redeemed. We have inherited them from our fathers and we must earn them again for if not, we will lose them and with them the uniqueness of moral and spiritual halachah.

The moralization of halachah requires courage. If the moral grounds that at times may lead to changing or abrogating the law are mumbled, the congregation will not understand nor be able to share in the growth of the halachic process.

Consider the fact that the Conservative Law and Standards Committee has indeed allowed a kohen to marry a divorcee or a proselyte, contrary to Biblical law. How many Conservative Jews have heart of this? May I suggest that the lack of communication between the Law Committee and the laity may be due to the embarrassment of the former? Instead of the liberating response with full-throated pride answering in its moral posture, its rationale is anything but moral. The Kohen who marries a divorcee or proselyte must renounce the status of his priesthood; it is argued that in any event we have no accurate record of one's priestly ancestry; and if the wedding is performed it is to be done modestly and "unostentatiously". Why are we embarrassed by the moral motivation that finds the discrimination against divorced women and proselytes plainly immoral in our times?

The Jewish world of the twenty-first century awaits a movement that can articulate and apply to our lives a wholistic halachah in consonance with our spiritual and moral sensibilities.

As a movement profoundly influenced by Jewish history, the Conservative Movement can raise to consciousness the moral courage of such leaders as Rabbi Menachem Ha-Meiri of Provence. Ha-Meiri observed that laws of the Talmud that reference to idolaters of that time remained on the books and discriminated against Gentiles of his day. He boldly innovated a new juridical category for Gentiles. In his Beit Ha-becherah, Meiri openly declared: "Christians are not idolaters and the Talmudic halachah applying to idolaters do not apply to Gentiles today who are 'nations that are guided by the ways of religion and believe in God.'" That was declared in the 13th century. How are we entering the twenty-first century?

"The gates of Halachah are closed. No one departs and no one enters. Those inside are not concerned with those outside. Those on the outside do not understand those who are within". Those words by Heschel are reflected in Neil Gilman's observation of a structured division separating laity from rabbis and rabbis from teachers. That schism has led cynics to describe Conservative Judaism as a movement consisting of an Orthodox faculty teaching Conservative rabbis to minister to Reform laity.

How are we to heal the schisms, revitalize our movement, unite the tripartite divisions with us, appeal to the major constituency we need to maintain a Jewish critical mass?

My thesis is that the healing of our institutional schisms depends upon our integration of halachah as a wholistic moral and spiritual expression. For what we have in common, what unites us as a religious movement is not our legal expertise but our moral sense.

When halachah becomes the province of a selected few, the rest of us are left out of the excitement and joy of halachic growth. I admit to an apprehension of the isolation of halachic process not only from the laity but from the congregational rabbis. One of the symptoms of the alienation from the halachic process is the growing intimidation of the rabbis. Twice in recent times a punitive voice has been attached to resolutions and debates. In the matter of patrilineality rabbis who disagree with the majority are told that their acts may be "punishable by expulsion from the Assembly." In one of the major papers on homosexuality, the threat is made that those who do not agree may find themselves incompatible with rabbinic membership.

That is no way to treat morei d'atra, those whose authority derives from their rabbinic training attested to by their ordination and by the fact that the congregation has chosen rabbis to be their religious guide. If Rabbis are not trustworthy or deemed competent enough to express and act on our conviction, they ought not to have been ordained. If they are ordained, they are not to be muted.

This past month my apprehension was increased when like you I received a letter from colleagues displeased by the resolution of the R.A. passed in the Spring of 1992. The letter is angry with the Assembly for voting to serve as rabbis of gay Synagogues. It argues that the appropriate venue to make such decisions belongs not to the Assembly but to the Law Committee. Has the split between law and ethics gone that far that it rejects the imperative to serve the spiritual needs of the pariahs of society? Is the spiritual support and guidance of the modern lepers of our society to be deemed contra-legal? Is this posture the way to win the heart and soul of our children, the way for halachah to gain respect from our constituency?

If we are to become a thriving movement, if halachah is to count in our lives, we must all be engaged in the process. When people have a stake in the making of halachah they have a stake in defending it and taking it seriously. In a democratic, open society the participation of the laity is indispensable. This calls upon the rabbinic leadership to go out and see and hear what the people think. Puk hazei mai ama d'var. I urge upon the Assembly to join with the Seminary and the Law Committee and the Synagogue, to organize annual regional and local Halachic Town Hall meetings; that we borrow a page out of the Clinton administration in its efforts to instruct people in economic reform, to organize seminars and meetings where rabbis and members of the Law Committee can hear what the needs and attitudes of the community are.

Before us, as we enter the twenty-first century, are issues of paramount concern that effect our lives, concerns that have halachic consequences ranging from medical ethics, matters of euthanasia and abortion, to family ethics.

Halachah must come out of its cloister. It must be and can be demystified. If the American public can be engaged to deal with economics, the "dismal science," we can engage Jews in and out of the synagogue in the discovery of Jewish ethical law. If the American public can learn to deal with the recondite issues of "short-term spending" and "cumulative deficit reduction," we can inform our people so that they understand the arguments for and against the right of women to serve as witnesses to a ketubah or the pros and cons of patrilineality. It is not too complex or subtle for our people to grasp.

Let us all, lay and rabbinic friends, participate in the debate and dialogue before it is handed down from above. Let us discuss it not b'di-evad, ex post facto, for by that time it is too late: "When the day is passed, the sacrifice lapses."

Let the faculties of our seminaries prepare literature on the pertinent halachah issues we confront to be used for our adult education, for our havuroth, for our religious schools. There is a hunger out there for knowledge - particularly that knowledge that will affect our lives. I do not know about the claims of the hozrim b' t'shuvah. But there are tens of thousands of hozrim bi-sh'eilah, those who will return out of inquiry.

Collegiality is called for, for the sake of the relevance of halachah, and the revitalization of our movement. We have no reason to fear collegiality across the board. The Bible records that when Joshua was jealous for Moses' sake because two lay people, Eldad and Medad, were prophesying in the camp, he asked Moses to "Shut them up." But Moses replied, "Joshua, are you jealous for my sake? Would that all the Lord's people were prophets, that the Lord put His spirit upon them."

If not prophets, they are the sons and daughters of prophets. Let us enter the twenty-first century together, the experts of the Committee on Jewish Law and Standards, the congregational rabbinate and the laity. "A threefold cord will not be broken."

This article is excerpted from Rabbi Schulweis' keynote address to the Rabbinical Assembly Convention in Los Angeles on March 22, 1993.

* This document, or any portion thereof, may not be reproduced without the written permission of the author.

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