Rav Goren is the symbol of the futile effort to force halakha and the state into a single unit. The Langer case held out a better option – which was missed.
Few embodied the idea that Jewish Law and the State of Israel can and should be one than Rabbi Shlomo Goren · What Haredi lawmakers saw the famous "Status Quo" agreement as a pragmatic arrangement, Rabbi Goren and his Religious Zionist allies saw potential for a true welding of religion and state · The result was the shambles that was the Langer case and the present impasse on personal status · A plea for true religious freedom – for everyone's sake
Monday, November 17, 2014 (24 Heshvan, 5775) marked the twentieth yahrzeit of Rabbi Shlomo Goren, the first chief rabbi of the IDF who served as Ashkenazic Chief Rabbi of the State of Israel from 1972 to 1982. The date passed with barely a ripple of attention; several weekly publications with a religious-Zionist bent marked the occasion with retrospectives, but he received little attention outside limited circles. On the one hand, this makes sense: Rabbi Goren was brilliant but eccentric and autocratic to a fault. He was hard to get along with, let alone venerate.
On the other hand, Israeli society ignores his legacy at its own risk. In the unending tug-of-war between religion and state in Israel, he did the most to re-imagine Jewish law (Halakha) to be compatible with the governing of a modern democratic state and to implement halakha as state law. This project neither started nor ended with Rabbi Goren, though he was its most successful proponent. His legacy therefore pervades some of Israel’s most contentious debates today, including the role of religion in the IDF and Jewish control over the Temple Mount. This article will assess the mark that he and his spiritual heirs left and continue to leave on the most problematic issue of all: rabbinic control over personal status issues.
Status Quo VS. Halakhic State
In 1947, David Ben-Gurion reached an agreement, generally known “Status Quo” arrangement, with leaders of the Haredi Agudat Yisrael faction that would become the basis for religion-state relations in Israel. In exchange for Haredi willingness to present a unified front for the UN, Ben-Gurion made four concessions. Two of the concessions – educational autonomy and availability of kosher food in all government kitchens – accommodate halakhic observance without compelling it. A third concession, the Jewish Sabbath as the national day of rest, constrains citizens’ activity on Saturdays but does not compel it in any fundamental way. The fourth—that marriage and divorce would be controlled by religious (in context, this meant Orthodox) Jews—indeed limits citizens’ freedom to choose who and how to marry (as any marriage regime must, by definition) by subjecting it to the dictates of rabbinic law. In other words, the Jewish state would be particularly accommodating and respectful of Jewish observance, but with the exception of marriage and divorce, it would not be governed by Halakha.
The fact that Israel would not be a halakhic state posed practical and philosophical dilemmas for religious Jews. Halakha is the Jewish people’s native legal system, and the restoration of the ancient Jewish judicial system was an integral part of the age-old anticipation of an eventual return to Zion. Isaiah’s prophecy (1:26-27), “I will restore your magistrates as of old, and your counselors as of yore… Zion shall be redeemed through justice…,” is paraphrased thrice daily in the prayers recited by religious Jews throughout history: “Restore our magistrates as of old, and our counselors as of yore… and You, Lord, reign over us alone, with kindness and mercy…” That is, the imagined restoration had an inescapably theocratic dimension. Secularist forms of Zionism were more than willing to dispense with the theocratic elements in favor of democracy, and Haredim denied that the anticipated redemption would come about through the vehicle of the state; they desired state adherence to certain elements of Jewish law for solely pragmatic reasons. Some religious Zionists, however, sought to square the circle of a modern democratic state with a halakhic state. Rabbi Goren was prominent among them.
Rabbi Goren’s vision was programmatic, consisting of distinct elements necessary to making it a reality. For one thing, religious Jews would have to see themselves not as a separate group but as an integral part of the whole Jewish people. When he was appointed the first chief rabbi of the Israel Defense Forces, many in the religious community and the military brass would have been perfectly content for religious soldiers to be segregated into their own “ghettoes” where their religious needs would be met. However, he insisted that the entire military become kosher, that training exercises be minimized on Shabbat, and that there be a synagogue on every base, so that religious soldiers could be fully integrated. Prime Minister Ben-Gurion, whose mamlakhti (state-centered) outlook dictated that the military be a melting pot that effaced sectoral, communal, religious, or ethnic allegiances, backed him on this, against opposition within the military. However, for Rabbi Goren, a completely kosher army was goal in itself, whereas for Ben-Gurion it was the price to pay for a “people’s army.”
Next, Halakha would have to be substantially revised in order to seamlessly integrate with the governing of the Jewish state. To that end, Rabbi Goren would offer unprecedented halakhic rulings, arguing that the Jewish state is a sui generis situation in which prior accepted rulings do not apply. For instance, though Halakha long forbade autopsies on Jewish corpses, Rabbi Goren permitted them on the grounds that:
It is inconceivable that the Jewish state would base its health system, which is vital for the nation and the state, on gentile corpses… It is inconceivable that we cannot find a halakhic way to maintain a high level of modern medicine by conducting autopsies on corpses of our own, as is done throughout the world.
Finally, in order to implement his vision, Rabbi Goren would need power—not merely the rabbinic authority accumulated by great rabbis in every generation, but the enforcing power of the state. To this end, the Chief Rabbinate was of paramount importance as a rabbinic body with state-sanctioned power. This is the body that would gradually revise and adapt Halakha to the realities of a modern state. And it was thus crucial to assess and forestall any political threat to the Chief Rabbinate’s power.
Is A Jew Determined by Halakha or the State?
The rabbinate’s power was indeed threatened. Rabbinate control of marriage and divorce meant that, de facto, it determined “Who is a Jew” and consequently who has the right to immigrate to Israel under the Law of Return. For many, this gave the rabbis too much power, so in 1970 that law was amended to extend the right of return to anyone with a Jewish grandparent. Then there was the case of Helen Seidman, an American Gentile civilly married to an Israeli man and living on a secular kibbutz. She converted to Judaism with a Reform rabbi, but was not recognized as a Jew by the rabbinate and therefore by the state. She petitioned the Supreme Court to be recognized as a Jew. Concerned that the court would recognize non-Orthodox rabbis, he met with Seidman and converted her on the same day. She withdrew her petition.
This was unprecedented, but he justified his behavior with two different rationales: First, he argued that the laws of conversion are different in Israel, where the prevailing culture is Jewish. Second, he argued that it would be terrible if the court were to require state recognition of non-Orthodox rabbis or implementation of civil marriage and divorce, as it would compromise the power of the rabbinate. These explanations are two sides of the same coin: in his view, Halakha could be adapted to the needs of the state, and therefore the state must adopt Halakha as law.
The Case that Shook the Halakhic World
The greatest threat to rabbinate control over personal status issues since the state’s founding was undoubtedly the “Brother and Sister Controversy.” Siblings Hanokh and Miriam Langer were born to a woman who had left her first husband without a Jewish divorce. The children of such a union are mamzerim (lit. bastards) halakhically and thus forbidden to marry Jews. Over several years, various state rabbinical courts confirmed that the Langers are mamzerim and could not marry. Finally, at the highest rabbinical court of appeals, Rabbis Yosef Shalom Elyashiv, Ovadia Yosef, and Shaul Yisraeli—leading rabbinic figures in the Haredi, Sephardic, and religious-Zionist camps respectively—upheld the ruling.
Understandably, it was unconscionable to many Israelis that two Jewish citizens, who had served in the IDF, would not be permitted to marry. In the ensuing outrage, Defense Minister Moshe Dayan threatened to institute civil marriage if a halakhic solution was not found, and one Knesset faction even proposed such a law, precipitating a coalition crisis. Senior politicians, up to Prime Minister Golda Meir, pressured the rabbis for a resolution.
Rabbi Goren, then chief rabbi of Tel Aviv, entered the fray by proposing a resolution: The mother’s first husband, a convert, was not really Jewish, so the first marriage is not recognized by Halakha and the children were not born out of wedlock. He supported his contention with two arguments: there was no documentary evidence that the first husband had converted, and that even if he had undergone the conversion procedure, his lack of subsequent observance rendered the procedure meaningless. He presented his proposal to Sephardic Chief Rabbi Yitzhak Nissim, but it did not result in a review of the case.
No matter. The terms of the incumbent chief rabbis were about to expire. Though the election procedures heavily favored the incumbent, Religious Affairs Minister Zerah Warhaftig, a proponent of Rabbi Goren’s candidacy, altered the make-up of the voting body to ensure that Rabbi Goren was elected Ashkenazic Chief Rabbi. Within a month, Rabbi Goren permitted the Langers to wed their fiancés. His ruling was not immediately published, and though he claimed that nine other rabbis signed onto his permit, their names were not released, ostensibly to protect them.
The circumstances looked suspicious. It seemed that Rabbi Goren had worked out a deal. The election rules would be changed to ensure that he be made chief rabbi, and he would resolve the Langer case. There is no reason to doubt the sincerity of Rabbi Goren’s belief that he found a solution to the case, to suspect that he subverted Halakha to political expedience, or to call his rabbinic bona fides into question.
The ruling on the Langer affair ought to have been Rabbi Goren’s greatest success. He found a way for the Langers to wed halakhically. He implemented his ruling despite a broad rabbinic consensus against it. On his watch, the office of the Chief Rabbi bridged the divide between Halakha and the sensibilities of those who abhor its marriage restrictions. He staved off threats to limit the powers of the rabbinate.
In truth, though, the affair demonstrated that his entire attempt to make Halakha suitable to serve as the law of the state was untenable, nothing more than a politically naïve messianic pipe dream.
A Pyrrhic Victory – and an Unnecessary One
The outrage of the rabbis in the wake of the affair was massive. At stake was not the correctness of his ruling (though that, too, was questioned), but the autonomy of the halakhic process. Rabbi Goren had concentrated the power to render decisions in his hands alone. The acceptance of his rulings was not contingent upon the agreement of rabbinic colleagues, but on the power of the men with the guns. He had engineered a hostile takeover of halakhic decision-making.
Did the ends justify the means? In his mind, they certainly did. If Halakha is to serve as state law, its interpretation and enforcement had to be concentrated in the hands of the state. If that meant that his innovative decisions had to be rammed down the throats of his rabbinic colleagues, then so be it.
Yet even for him, it had unintended consequences. Within Haredi circles, the Langer affair was the moment when their benign indifference or grudging respect for the chief rabbinate morphed into utter contempt. Rabbi Elyashiv resigned from his post on the rabbinate’s high court and made it part of his mission to ensure that future chief rabbis would pledge allegiance to leading Haredi rabbis; if there is no way to control the actions of a chief rabbi once he assumes office, then he would make every effort to ensure that the right people get into office. Starting in 1977, when Israel effectively became a two-party system and the cost of bringing small sectoral parties into the governing coalition rose dramatically, rabbinical posts became coveted political spoils, especially for the Haredi parties that came to dominate the official rabbinate, to the chagrin of much of Israeli society.
Rabbi Goren has spiritual heirs today: rabbis and religious politicians who believe that Halakha must be imposed on the secular public when it comes to personal status, for their own good, but that Haredim cannot be trusted to implement a sufficiently benign nanny theocracy. They maintain that the corruption of the rabbinate is the sad consequence of the Haredi takeover, not the inevitable consequence of a system that gives rabbis real power. These heirs hold Rabbi Goren up as an inspiring example of halakhic boldness and forward-thinking, a hero willing to stand up to other rabbis. They wish to empower rabbis who are willing and empowered to adapt Halakha to meet their needs and not offend their sensibilities.
But even if they one day wrest control of the rabbinate back from the Haredim, it will not result in that institution becoming a tool for the expression of God’s sovereignty. It will merely ensure another round in an endless tug-of-war. They do not recognize that there is a straight line from Rabbi Goren’s handling of the Langer case to the election of Rabbi Yona Metzger, a lightweight and a fraud supported by the Haredi parties, as chief rabbi in 2003.
Sadly, the best solution to the Langer situation was on the table at the time. Had Moshe Dayan gone through with his “threat” to introduce civil marriage, the Langers would have wed their fiancés in secular ceremonies. The corruption of the rabbinate would have been checked by the presence of an alternative. Those with no interest in living their lives according to Halakha would have been free to do so without interference from rabbis. Those who wished to live halakhic lives would have been free to submit to the rabbinic authority of his choice. Halakha would have continued to adapt to the realities of the State of Israel, as it has adapted to every other historical condition, slowly, by consensus, in an evolutionary and not revolutionary manner, and without becoming a political football.
Unfortunately, not enough citizens understand certain basic concepts of religious freedom. Some want freedom from religion. They want to live their lives outside any dictates of any religious law. They want religion to keep out of matters of state. Others want freedom of religion, the freedom to abide by the rulings of the rabbis they choose without state interference. They want to keep the state out of matters of religion. True religious freedom requires the protection of both. And both can indeed be accommodated, albeit imperfectly. Three of the four clauses in the original Status Quo agreement were consonant with religious freedom. The fourth—religious control of marriage and divorce—was not. That this deeply problematic condition endures is an inescapable part of Rabbi Goren’s legacy.