Is American Orthodoxy not Orthodox?

Is American Orthodoxy not Orthodox? This may seem a preposterous question. However, if you look at the positions of Israel’s Rabbinic establishment, it is difficult not to reach this very conclusion… At least, from the point of view of the Chief Rabbinate, which claims to be the supreme halakhic authority in Israel and the entire Jewish diaspora.

This question confronts us again in the wake of the storm over the petition we submitted to the Supreme Court [Hiddush, the Secular Forum, and a group of parents of IDF soldiers] for the right of non-Jewish and Jewish non-observant soldiers to possess and eat chametz on Passover in their private domains.

This is not the first time this question has arisen. For example, you may recall the battle waged by Israel’s Chief Rabbinate against recognizing conversions performed by rabbis of Orthodox communities in the United States, who have been performing conversions for decades. The Chief Rabbinate successfully pressured the Rabbinic Council of America, the rabbinical organization of mainstream North American Orthodoxy, which agreed that only those who convert through a handful of regional courts in America approved in advance by the Chief Rabbinate would be considered Jewish in Israel. Similarly, recall the scandal that ensued when it was revealed that the Chief Rabbinate does not recognize confirmations of personal status issued by many Orthodox rabbis of high standing in North America.

We hold that both non-Jewish and non-observant Jewish soldiers have rights that must be respected and that this does not detract from the kashrut status of food provided by the IDF to all soldiers.

Israel’s Military Rabbinate, on the other hand, claims that if all soldiers on IDF bases are not forbidden from possessing chametz – those soldiers that keep kosher would not be able to remain at IDF bases during Passover.

However, as is well known, observant Jewish soldiers also serve in other militaries.  Through Rear Admiral [Ret.] Rabbi Harold Robinson, the highest-ranking rabbi in the American armed forces during his years of active service, and other senior Orthodox rabbis in the U.S. military (all of whom hold the rank of colonel or higher) we ascertained that no such restriction is required under Halakha. Without exception, they all confirmed that observant Jewish soldiers are allowed to live in rooms with non-Jews or Jews who possess and eat chametz on Passover. This is because the halakhic Passover prohibition that “(chametz) shall neither be seen nor found” only applies to the observant soldier’s own chametz, rather than chametz possessed by others. The rabbis of Yeshiva University repeatedly give the same answer to observant university students living in dormitories together with non-observant students.

The position of Israel’s Military Rabbinate, which was amplified by some leading Orthodox rabbis outside the IDF, is that halakha “forbids a Jewish soldier to be in a room where chametz is located, and – at least – he must erect a stable barrier of at least 80 cm between himself and the chametz.” This is based, so they claim, on applying to Jews the rules listed in the Shulchan Aruch that deal with a non-Jew who deposits chametz with a Jew during Passover.

However, the Military Rabbinate chose not to quote the next section of the Shulchan Aruch, which permits a non-Jew to enter a Jew’s home with a sandwich in his hand and eat it, as is explained further in Chabad’s Shulchan Aruch Harav: “If …  the non-Jew does not entrust his chametz to [the Jew], it is permitted for [the Jew] to allow [the non-Jew] to enter [the Jew’s] house carrying his chametz. Even though the Jew sees [the non-Jew with his chametz], that is not of consequence. [The rationale is that] it is written, “[Chametz] of yours [shall not be seen,” which our Sages interpreted as implying,] “you may not see your own [chametz], but you [may] see [chametz] belonging to others.” The non-Jew is even `permitted to eat his chametz on the Jew’s dining table, when the latter is not eating, and all that’s halakhically necessary is “to clean the table thoroughly after the non-Jew eats [there] so that no crumbs of [the non-Jew’s] chametz remain there.”

This is just one of the halakhic arguments I presented to the Supreme Court on this subject, as the Rabbinate intentionally chose not to disclose it.

Throughout the ages, halakha has demonstrated great flexibility and ability to provide solutions to gaps between Torah law and the changing realities of life.

Throughout the ages, halakha has demonstrated great flexibility and ability to provide solutions to gaps between Torah law and the changing realities of life. Such are the fiction of the sale of chametz to a non-Jew in order to avoid the need to destroy it, and the fiction of the sale of all Jewishly owned agricultural fields in Israel to an Arab in preparation for the shemitah (sabbatical) year. So too, the fiction of heiter iska “transaction permit” that can be seen hanging in bank branches across Israel, through which the biblical prohibition against charging interest on loans to Jews was abolished in practice.

Against this background, it is easy to understand the words of the Chief Justice of the Supreme Court, who is aware of the halakha’s ability to respond to changing realities. Addressing the State attorney, she said: “It’s hard to accept that no solution can be found for those who want to eat chametz on Passover, as is their right… ‘if there is a will, there is a way.’”

The problem is not halakha. The Orthodox Military Rabbinate in America knows this and rules accordingly. But Israel’s Military Rabbinate insists on the opposite! Why? Because they can!

Halakha is flexible, but Israel’s rabbinical establishment is not. This battle is not only about the fine points of Kashrut on IDF bases. It is also about the nature of Judaism and the future of the State of Israel. Do not let Israel’s Chief Rabbinate tarnish Orthodox Judaism in the United States, as if it is not Jewish enough or not faithful enough to halakha. The Rabbinate in Israel is trying to force religious observance upon the general public. In so doing, it harms both the image of Judaism and the vital need to maintain a balance between mutual respect and pluralism, between the two components of Israel’s identity: Jewish and democratic.

Rabbi Uri Regev, Esq. is the CEO of Hiddush – For Freedom of Religion and Equality. Together with the Hiddush team, he is representing the petitioners before the Supreme Court.