Rav Shai's Torah on the Grow

Like many of you, I was sickened by the article that appeared on the front page of Sunday’s Inquirer. Whenever the first word of a headline is “Jewish,” I get nervous. In this case, Jews were both victims and perpetrators. Last year, a local Jewish family suffered a very late and unexpected miscarriage. Through one of our local Jewish funeral homes, the parents arranged to have their stillborn son, Noach, buried in Lakewood, NJ.  

Once Julia and Eugene Gross were strong enough to visit their son’s grave, they were unable to locate the section of the cemetery dedicated to stillborn children. After hiring an attorney, they discovered that their child’s body had been buried in an unmarked, mass grave. Subsequently, the Grosses received a letter from Rabbi Shmuel Tendler, the rabbi of the congregation that runs the cemetery, assuring them that Noach was “buried in accordance with the strictest standards of Jewish Orthodox Halacha and tradition.” Tendler was almost right — and that’s yet another tragedy in this story.

Rabbi Stephanie Dickstein, whose ordination Rabbi Tendler would never recognize based exclusively on her gender, explained in her 1996 legal responsum on this issue that the laws in question were originally intended to show compassion.

Scholars speculate that infant mortality rates in 1st-century Israel were roughly 30%. The rabbis were concerned about overburdening the parents and the community members with all the rituals surrounding death and mourning, so they conditioned those rituals on the baby living past its first thirty days. Should a fetus or infant not survive that long, the parents and community were exempt from nearly all associated rituals.

Today, in the US, the mortality rate is just over one half of one percent. Particularly in the highly educated Jewish community, women are having children relatively late in life. When pregnancies fail, to ignore the pain and suffering of a woman, her partner, and family is callous. By committing oneself to the form of the law rather than the goal of the law, Rabbi Tendler and his ilk have turned the halakhah from agents of mercy to agents of cruelty. Rabbi Dickstein, writing for the Conservative movement’s Committee on Jewish Law and Standards, demonstrated the compassion and courage to change the form of the law to align with the purpose of the halakhic system. (Read Rabbi Dickstein’s teshuvah here.)

Moses Maimonides, RaMBaM, would censure Tendler on two accounts. The first is his inability to understand that a law should not be adhered to when its adherence would contradict the goal. Here’s a snapshot of his philosophy of halakhah concerning pikuach nefesh (safeguarding a life):

“The laws of Torah were given to bring compassion, lovingkindness, and peace into the world. The heretics who say that violating Shabbat is forbidden [even for one who is dangerously ill] offer an example of what Ezekiel wrote citing God’s words, ‘I also gave them laws that were not good and statutes that they could not live by (Ezekiel 20:28)” (Mishneh Torah, h. Shabbat 2:3).

Ezekiel’s God gave the Israelites bad laws; RaMBaM’s God gave the Israelites good laws that, under certain circumstances, turn cold.

The second reason why RaMBaM would sanction, or even excommunicate, Tendler was that his actions constitute a chillul haShem, a public desecration of God’s name. Anyone whose stomach churned when they read The Inquirer article felt that chillul haShem in their kishkes. RaMBaM writes in his halakhic code that something done by a person of great Torah learning which causes people to speak disparagingly about him, even if he doesn’t specifically violate a commandment, commits a chillul haShem. The Yiddish rendition of that sentiment is: A Shanda fur die Goyim.

May we have compassion for the Gross family, clarity about Tendler’s desecration of God’s name, and courage to ensure that all of our tradition radiates compassion, lovingkindness, and peace.