Why the deal allowing the BDA to determine Jewishness is a bad idea

The RCA on Friday released the following statement:

At no time have the RCA or the Beth Din (of America) proactively sought to reevaluate conversions; that is not our interest or desire. However, Halachah does have its standards, and we have acted and will continue to act as a source of information to those rabbinic agencies which seek to determine if halachic standards have been upheld. In creating the “Geirus Protocol Standards” system, we have facilitated the acceptance of U.S. conversions throughout the world. Furthermore, it is only natural, as a responsible local presence of halachic authority, that we are a resource for rabbinical agencies, in Israel and worldwide.

This statement is entirely true, but completely irrelevant.  Here’s why: Owing to their arrangement with the Israeli Chief Rabbinate, and the desire of the Religious Zionist community in America to ensure that its members can make aliyah without difficulty, the RCA and BDA do not have to be proactive in order to apply their standards retroactively.  In practice, most converts making aliyah, and many who wish to get married here, must apply to the RCA for certification of their Jewishness.  The same applies to their children.  Thus all these conversions are being reevaluated, and I can state from personal knowledge that many legitimate pre=GPS converts and descendants of converts live in fear that their Jewishness will be rejected.  This seems to me a violation of ona’at hager, “afflicting the convert”, even in cases where the anxiety is unfounded and the conversion would be approved.

In light of this discussion, I am appending here an op-ed I wrote some weeks ago but for various reasons had not published.

It is very good news indeed that the Chief Rabbinate has apparently backed away from its deal with the RCA on verifying the Jewish status of potential immigrants.  The deal resolved a standoff about the status of Rabbi Avi Weiss – but how rabbis treat rabbis is less important than how Halakhah treats people, and this deal would have traded the baby for the bathwater.

What do I mean by that?  The Rabbanut agreed to accept all personal status certifications from RCA members, including Rabbi Weiss, if those letters were certified by the Beit Din of America (BDA) as providing evidence of Jewishness in conformity with a new protocol.  In other words, allegedly to save Rabbi Weiss’ honor, the RCA will serve as the rabbanut’s proxy and decide which letters should be accepted.  Rabbi Weiss’ honor has been saved by making every other rabbi’s letter undergo the same process that was objected to regarding his own.

One can only hope that Rabbi Weiss’ letters will have a better fate under the new system than under the old.  A previous controversy involving Rabbi Weiss saw the BDA require reconversion because he had allowed a Rabbi who was himself a convert to serve on the original beit din (even though the argument that such conversions are valid at least post facto was easy to make).  Surely Rabbi Weiss’s future letters will be carefully scrutinized, especially when they acknowledge conversion in the maternal line.

But this new scrutiny, it can be argued, will be a good thing if administered evenhandedly.  A problem with the existing rabbanut system is that it relies on nontransparent personal rabbinic relationships, so that each rabbi uses his own criteria and rabbanut acceptance is a function of the name on the letter rather than of the process by which the letter was researched.  Now at least congregants will know what they need to do to be certified. 

That far I might agree.  But the proposed protocol has several unfortunate additional consequences.  The most important is that it requires the certifying rabbi to record not just the existence of a valid conversion in the maternal line (even several generations back), but the names of the rabbis on the beit din for that conversion.  This means that if, for example, it later turns out that a rabbi sometimes followed a non-BDA approved protocol (or was himself a convert), the BDA will be able to find and cast doubt on the Jewishness of the convert and of every maternal descendant. 

You might think that this fear is obviously overblown, as everyone understands that one cannot apply changing standards in personal status law retroactively.  Wouldn’t this be like challenging a get after it was given, which violates a cherem of Rabbeinu Tam and “casts aspersion on predecessors”?  But unfortunately members of the BDA have already applied such positions retroactively, even at the cost of forcing reconversions in cases where the original conversion was in good faith under irreproachably Orthodox auspices.

There is absolutely no reason for these records to be kept available, and this deal must be opposed until it is made clear that they will not be.  The RCA and BDA must declare that the system will function like the system for divorce, in which it is a violation of halakhah even to examine a get that has been used for divorce, lest one find grounds to question its validity.

There is another problem as well.  This protocol is modelled on the “GPS system” (gerut protocols and standards) that the RCA adopted several years ago for conversions.  That system has had the positive effect of expanding the availability of conversions that will reliably be accepted in Israel and across Orthodoxy, and prospectively, that gain may be worth the cost of excluding some potentially legitimate  converts from Orthodoxy altogether, or of creating a class of converts through unapproved batei din who will never be able to establish their Jewishness successfully.

But in my opinion, the system overreached by applying its criterion retrospectively.  This too has forced many unnecessary reconversions (giyur l’chumra, as opposed to giyur mi’safek, which is necessary) in cases where the original conversion was in good faith under irreproachably Orthodox auspices.  Worse, many such converts and maternal descendants of converts are unwilling to undergo these reconversions, for good and/or sufficient reasons[1].  We are therefore treating many genuine converts as if they were not really Jews, which violates the numerous Torah prohibitions against afflicting converts, to say nothing of our obligations to their descendants simply as fellow Jews.

It is also the case that in America, many families that have been Jewish for untold generations have no clear proof of that fact.  The BDA must make clear how it will handle cases of baalei teshuvah whose families have lived in areas where no one shomer Shabbat knew them, and the like, lest this protocol lead to the actualization of the claim that Orthodoxy recognizes only the Orthodox as Jewish.

For these reasons I suggest that the RCA seize the opportunity handed it by the rabbanut’s withdrawal to itself withdraw from this deeply flawed agreement.  We can and must do much better.

[1] a) For women, unnecessary conversion prevents them from being able to marry kohanim
b) Both men and women are legitimately unwilling to cast aspersions on the Jewishness of their mother or maternal relatives
c) All human beings reasonably resist going through rituals that require them to deny their own sense of self
d) They cannot honestly meet contemporary Orthodox conversion standards.


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