In Talmudic times the question regarding the status of a Jew converted to a religion other than Judaism could not have arisen. The Jew who worshipped the pagan gods did not become ‘converted’ to paganism, abandoning his faith for another…. The whole problem of Halakhic attitudes towards other religions could have no meaning until the emergence of the ‘daughter’ religions, Christianity and Islam. That is why all the Halakhic discussions on the question date from the middle ages.215
In the middle ages, the question of apostasy took on a new dimension as Rabbis needed to grapple with the implications of baptismal ceremonies.216 While there were different Halakhic sanctions imposed on apostates during the middle ages, the most telling signs of the Jewish communities’ deep concern for apostasy were in two medieval reactions: namely, conversion rites for former apostates who wanted to return to the Jewish community and mourning rites for living Jews who had converted. Regarding the former, many Halakhists insisted that apostates who returned to the Jewish community even after renouncing their conversion should undergo the formal steps of conversion to Judaism. During the time of the Crusades, when forced conversion became all too common, this ceremony enacted formal Halakhic borders for reentry into the Jewish community.217 Strictly on Halakhic grounds, of course, no such ceremony should have been necessary, as a baptism for the overwhelming majority of rabbinic scholars was a Halakhically meaningless act that did not alter the recipient’s Jewish identity. Nonetheless, beginning in the twelfth century many returning former apostates were denied reentry into the Jewish community until they formally “re-converted.” This requirement, which is codified in the Shulkhan Arukh,218 has a long and varied history in rabbinic literature but most certainly underscores the severity with which rabbinic authorities approached apostasy.
A second, even more questionable reaction towards apostates was the custom of some to sit shiva if a family member converted to another religion. This custom has even less actual grounding than the former in Halakhic texts. The shiva custom for apostates originated from a simple misreading. Rabbeinu Gershom, one of the founding leaders of Ashkenazic Jewry, is recounted in many Halakhic texts as having sat shiva after his son, who apostatized.219 A closer reading of the story makes it clear that Rabbeinu Gershom did not actually sit shiva in his son’s lifetime; he rather observed added mourning rites upon his son’s death. With his son’s having died an apostate, his loss was compounded as it was not only a father who lost a son but our Father in Heaven that lost someone who died without returning to the Jewish community. The misreading of this story did, however, lead some Jews, especially those in Europe, to believe that families should actually sit shiva if a family member apostatized.220 It is less clear how often families actually observed such mourning ceremonies, but it is apparent that the notion of such mourning rites was well known in Europe. Rabbi Moshe Sofer was adamant that mourning for a living apostate undermines the very real possibility of a return to the community. “Certainly there should be no mourning so long as the apostate is alive,” he writes, “…but for the parents to cry and lament is certainly appropriate as it may evoke God’s mercy to awaken the heart of the apostate to return before he dies.”221
Once a Jew, Always a Jew? Debating the Status of Apostates in Jewish Law
The symbolism of the aforementioned customs aside, most correctly assume (as Jewish bubbies have maintained for generations), “once a Jew, always a Jew.” This was certainly the assumption of Brother Daniel when he entered Israeli Supreme court. But can we be so sure that this adage is indeed true? How do we know that a Jew who converts to another religion is still indeed Jewish?
Rabbi Shlomo Yitzhaki, the great commentator Rashi, was posed this very question. In his response Rashi bases the immutability of one’s Jewish identity on a Talmudic passage that states, “although he has sinned he is still a Jew.”222 This passage, according to Rashi, is the basis on which apostate marriages are given the Halakhic import of a Jewish marriage, thereby requiring a proper divorce. Some, while agreeing with Rashi’s prooftext, did disqualify apostates from certain rabbinic rituals, notably yibum and halitzah; based on the more stringent requirements for levirate marriage, namely that that the parties involved must be considered like “brothers.”223 Some opinions argued an apostate could not be considered a brother, but in the case of marriage and in evaluating his underlying Jewish identity they did concur that “although he has sinned he is still a Jew.”224
The context of the Talmudic passage “although he has sinned he is still a Jew” does raise other difficulties. This phrase appears regarding a little-known biblical personality named Akhan. In the Book of Joshua following the Jewish people’s crossing of the Jordan, Joshua declared that God prohibited any Jew to plunder from the spoils of their conquests. In the subsequent battle against the people of Ai, the Jewish people suffered a crushing defeat. Joshua, devastated from the defeat, cried out to God to learn the reason for their loss in battle. God explained that the loss was in retribution for someone within the camp who had violated God’s earlier instruction not to take any spoils of war. “Israel has sinned,” God explained, “they have also violated my covenant that I have commanded them; they have also taken from consecrated property; they have also stolen; they have also denied; they have also placed it in their vessels.” God was not pleased. After casting a divinely inspired lottery, Joshua revealed the culprit: Akhan.
The Talmud focuses on God’s response to Joshua, “Israel has sinned,” stressing that even though Akhan sinned, he is still described as a part of Israel:
“Israel has sinned” (Joshua 7:11). R. Abba Bar Zavda said although they have sinned, they are still Israel. R. Abba said this is reminiscent of the adage “A myrtle that stands amongst willows is still called a myrtle and people as well still refer to it as a myrtle.” [The Talmud continues to expound the end of the previous verse] “And they also have broken My Covenant which I commanded them, and they also have taken property from the ban, and they also have stolen, and they also have denied, and they also have put into their vessels.” R. Illa said in the name of R. Yehudah bar Masapa: This teaches that Akhan transgressed the Five Books of the Torah, for in the verse “also” is written five times.225
From the story of Akhan Rashi concluded that future apostates also remain Jewish despite their transgressions. Rashi’s textual leap from this Talmudic text, however, was not without its doubters. Jacob Katz in his seminal article on apostasy226 notes the questionable use of this passage as a source for Rashi’s ruling on apostasy. “In its original Talmudic context,” Katz notes, “this sentence appears in an aggadic setting only, and not in relation to apostasy.”227 Indeed, Akhan is never accused of converting to another religion. In fact the plain reading of the passages in Joshua only ascribe the more mild offense of stealing from the spoils of war—it is only Rabbi Illa’s interpretation that finds Akhan guilty of violating the entire Torah.
Around five hundred years after Rashi’s original decision, the marriage of a Marrano couple renewed questions about Rashi’s prooftext and the conclusions he reached. In the sixteenth-century Rabbi Samuel de Medina was asked whether the marriage of a Marrano couple who still lived as non-Jews should be considered legitimate according to Halakhah. In his response de Medina questions the consensus that had developed for Rashi’s approach:
The entire source that we learn that a Jew still retains his holy identity is derived from the story of Akhan—but in the case of Akhan himself we don’t find any sin aside from his transgression of using plundered goods. But with respect to all other commandments, Akhan was kosher! So we can only derive from this story that which is similar to Akhan, namely, someone who only commits one sin.
De Medina continues to dismiss the Talmud’s attribution of Akhan’s violating the entire Torah to the minority opinion of Rabbi Illa. According to de Medina the only conclusion to be extrapolated is that a Jew who violated an isolated sin is still Jewish. But, suggests de Medina, a Jew who becomes an apostate or vi
olates the entire Torah forfeits their Jewish identity.228
The suggestion of de Medina is certainly startling but has some appeal to modern sensibilities. If Jewish identity can be forfeited, it would stand to reason that it also needs to be earned. An immutable religious identity for many sounds too close to a racial theory of Judaism. The possibility of losing one’s Jewish identity also emphasizes contemporary notions of free will and choice—our religious identity needs to be personally developed and maintained.
So which is it? De Medina asks some incisive questions on Rashi, but the near unanimous consensus among Halakhists sides with Rashi. While everyone agrees with Rashi’s conclusion—once a Jew, always a Jew—almost no one explicitly responds to the issues raised by de Medina. What response, if any, is there to de Medina’s objections?
From an early age until his death at the age of ninety-one, Rabbi Moshe Feinstein was considered one of the leading twentieth-century scholars on Jewish law. He decided Halakhah during an exciting time—technology was flourishing and Jews were acclimating to the United States. It was also a contentious time to decide Halakhah. The United States, where religious freedom was afforded to all, proved a fertile ground for the flourishing of multiple denominations within Judaism. As Orthodox Judaism struggled to find footing in the New World, Conservative Judaism was quickly embraced as the perfect blend between the innovation of Reform Judaism and the old-world traditions of Orthodoxy. Rabbi Feinstein was sent many questions from members within the Orthodox community regarding the Halakhic legitimacy of Conservative and Reform Jewish practice. His answers drew clear boundaries surrounding the Orthodox community, separating it from the practice of other denominations. Egalitarian prayer, non-Orthodox divorce, and conversion were not in his opinion legitimate practices.
Rabbi Feinstein’s decisions, of course, were not motivated by animus or politics but by his nonpartisan approach to Jewish law. His opinions earned him accolades and ire from those on the religious right and left of him. But Rabbi Feinstein, whose Halakhic responsa spans eight volumes, continued to pen incisive Halakhic opinions for nearly his entire life. A New York Times profile written during his lifetime begins with the old joke that upon completing rabbinic training, young rabbis receive their ordination and the telephone number of Rabbi Feinstein.229 Rabbi Feinstein’s authority, like most great Halakhic voices through the ages, did not derive from any position or title. “You can’t wake up one morning and decide you are an expert on answers,” explained Rabbi Feinstein. “If people see that one answer is good and another answer is good, gradually you will be accepted.” The Halakhic authority of Rabbi Feinstein emerged by acclamation and reputation. His answers, no matter how difficult or painful, were good.
Though Rabbi Feinstein authored many of the seminal decisions that solidified the Jewish denominational divide, he was also adamant regarding the immutability of our essential Jewish identity. Less than a handful of rabbinic thinkers comprehensively responded to the questions raised by de Medina—Rabbi Feinstein is one notable example. The man who shaped Orthodoxy in America was an equally pivotal figure in ensuring the immutable identity of the Jewish people.230
Rabbi Feinstein presents the following theory as to why apostate Jews retain their Jewish identity. Rashi, he explains, never meant to suggest that the story of Akhan was the prooftext guaranteeing Jewish identity even for an apostate. The Talmudic phrase “although he has sinned he is still a Jew” is not the source establishing that an apostate Jew remains a Jew—it is just a succint and neat expression of that concept. What Halakhic concept, then, does guarentee the immutability of one’s Jewish identity? Rabbi Feinstein proposes a rather simple explanation:
The reason why the Talmud assumes that an apostate is considered a Jew for all intents and purposes is because it is simply impossible for a Jew to transform into a non-Jew. There is a specific Torah innovation that a non-Jew is able to become a Jew through the formal Halakhic process of conversion, but nowhere in the Torah—not in Scripture and not in any tradition—is there a halakhic concept of a Jew that can transform into a non-Jew. And therefore [an apostate] remains a Jew with a holy Jewish identity for all commandments…231
The laws of conversion, aside from detailing the process of entrance into Jewry, also explain why an apostate remains a Jew. If the Torah needs a formal Halakhic process to guide the creation of a Jewish identity, then logic would dictate that a similarly formal process would be needed to dissolve one’s Jewish identity as well. From the fact that no such formal Halakhic process exists to announce apostatsy, it stands to reason that even an apostate is recognized as a Jew under Jewish law.
This logic actually informed many apostate Christians looking to reverse the religious affirmation of baptism. Edwin Kagin, one of the leaders of the American Atheist movement, developed a formal ritual for Christians to reverse their baptisms. Wielding a blowdryer, Kagin would symbolically blowdry the liquid remnants of the baptism out of the supplicants’ hair.232 Of course, this was likely intended as pure theatrics, but the underlying motive underscores the logic of Rabbi Feinstein. Halakhah is a formal system in which ritual and law govern action and identity. There is no way to blowdry away the process of conversion, so regardless of the beliefs and action of an aposticised Jew—the Jew remains Jewish.233
The Apostate’s Message
Brother Daniel’s legal counsel argued that to deny Brother Daniel his Right of Return to Israel—because of his apostasy—would transform Israel into a theocratic nation. However, his appeal was ultimately rejected by the Supreme Court on those very grounds: Israel is not a theocratic nation. Under traditional religious rule, the Supreme Court conceded, Brother Daniel was still to be considered a Jew, but it is not religious law that binds Israeli citizens. Brother Daniel was denied the Right of Return because the secular understanding of the word Jew is different from its religious connotation. The majority opinion explained:
The prevalent view in Jewish law is, in my opinion, that an apostate is regarded in law as a Jew in all respects, expect perhaps for a few marginal rules that are of no importance for the question of principle. The term Jew in the Law of Return has a different meaning from that term in the rabbinical courts’ jurisdiction law. The latter has a religious sense in the meaning accorded to it by Jewish law, while the former has a secular sense in the meaning of the ordinary usage of men…234
It turned out that the distinction between Jewish law and secular law, a distinction for which Brother Daniel’s counsel advocated, was precisely what disqualified him. This was not lost on the judges: “The case before us proves this. Had we applied the categories of religious law to the applicant he would have been considered a ‘Jew.’”235
Brother Daniel, the court concluded, was a Jew—but only according to traditional Jewish law. According to Israeli law, an apostate Jew is no longer Jewish. Legal interpretation, it turned out, was not as flexible as religious identity.
The court’s opinion, aside from its crucial implications for legal precedent in Israel, raises important considerations for the boundaries of identity in general. The case recognized that identity, aside from the strict boundaries found in religious law, can be lost. The case also recognized that identity is not always simply a product of personal choice, but the community with which you are identifying plays an important role in shaping the borders of identity.236 According to the Israeli Supreme Court, an apostate does not define the legal implications of the word Jew when the entire community plainly understands otherwise.
A few months after the Brother Daniel decision, Rabbi Aharon Lichtenstein (1933–2015), Rosh Yeshiva at Yeshiva University and Yeshivat Har Etzion, wrote a lengthy treatise reflecting on the incident.237 Rabbi Lichtenstein presents a fascinating analogy to understand the nature of an apostate’s Jewish identity. Apostates, he explains, can be likened to the Land of Israel. The holiness of Israel derives from the formal settlement of the Jewish people. But prior to the formal settlement of Israel, were those lands to be
considered completely mundane—no different in Jewish sanctity than Quebec or Newfoundland? Of course not. Although the formal settlement of the land of Israel is necessary to endow the land with its holiness, even absent such a ritual the land still remains unique—at the very least it retains the capacity for holiness. The ritual of settlement endows the land of Israel with holiness, but there is an essential designation of that land as Israel that is immutable—even absent any ritual act to endow holiness.
The same is true for the apostate. Rabbi Lichtenstein explains:
I think a similar distinction should be established with reference to an apostate. If we ask, in purely descriptive terms, whether anyone born of Jewish parents is a Jew, the answer must be—yes. As an epithet, it remains applicable to any individual who was ever endowed with Jewish status—even to a meshumad. Hence, he is obligated to pursue a Torah life and, should he decide to return, he would perhaps require no new conversion. However, if we ask whether a meshumad has anything of Jewish personality and character and whether, therefore, he continues to be endowed with the personal status of a Jew, the answer is a ringing no. He remains a Jew without Jewishness. What he retains is simply the descriptive epithet—shem yisrel. Of kedushat Israel, however, of sacredness of the Jewish personality, that which essentially constitutes being a Jew—he is bereft.
The apostate, like the Land of Israel before Jewish settlement, preserves Jewishness in potentia. A Jew can never become like Canada—even the settlement of the entire Jewish people there would not endow it with the holiness of Israel. But the apostate is also not the settled land of Israel. He is a blank page bereft of a narrative. Only through settlement into the collective history and commandedness of peoplehood can the apostate’s holy Jewish identity be restored.
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