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Conservative Jewish Legal Decision Making

and the Question of Gay and Lesbian Jews
by Michael Pitkowsky
Brad Artson (1993-
1. “Halakhah generally utilizes a method of reading the Torah and rabbinic
sources as a way of developing applications of old rulings to new circumstances,
or to generate new rulings when no established precedent exists. This process
of legal development relies frequently on the evolution of knowledge, technology,
and moral standards.”
2. “Committed, permanent, exclusive homosexual relationships between
equals were unknown until the modern era, and therefore could not have been
explicity prohibited by earlier Jewish law.”
3. “In every way, the examples of antiquity-as correctly condemned by these
rabbinic sources-fail to address the nature of homosexual relationships made
possible by modernity.”
Joel Roth (1992-
1. “[Brad Artsonʼs] interpretation, if successful, would be a radical, but
defensible, interpretation which might take halakhic decision-making into new
territory, with far-reaching conclusions.”
2. “Any competent decision-maker would know immediately that such a radical
interpretation would require incontrovertible proof, for many reasons.”
3. “But, a competent decision-maker who is utilizing information gleaned from
sources external to the Halakhah will be extremely careful to insure that the
sources relied upon are not a matter of dispute among authorities of that
discipline, in this case, authorities on homosexuality.”
4. (from 2006-
roth_revisited.pdf) “I have long admitted that I am not an expert in legal
philosophy, but since the idea of a chain novel, I believe, originates with Ronald
Dworkin who, together with Robert Cover, are the two favorites of the
Conservative naturalists, I wish to quote two paragraphs from an article of his
entitled “Natural Law Revisited,”...
quote from Dworkin: “A naturalist judge might find some principle that has
not yet been recognized in judicial argument, a brilliantly unifying account of past
decisions that shows them in a better light than ever before…Nevertheless, the
constraint, that a judge must continue that past and not invent a better past, will
often have the consequence that a naturalist judge cannot reach decisions that
he would otherwise, given his own political theory, want to reach.”
Elliot Dorff (1992-
1. “[Rothʼs] formalism is not of the most extreme sort, for he does
acknowledge “extra-legal” factors as potential sources for influencing decisions.
Nevertheless, his view is formalistic in that the legal process is seen as logical
deduction from previous texts of the law."
2. “I think that formalism, even of this modified type, is an erroneous way to
understand any legal system, certainly one that has undergone all of the
historical vicissitudes of Jewish law. One simply cannot pretend that the texts of
our tradition existed in some pristine metaphysical realm in which the only issue
was the logical relationships tying one to another. As Supreme Court Justice and
legal philosopher Oliver Wendell Holmes Jr. Noted almost a century ago, proper
legal reasoning is not simply a matter of deductive reasoning from previous texts.
It is not a form of mathematics, where one must worry exclusively about doing
oneʼs sums correctly; it requires attention to historical context and conscious
recognition of the moral judgements each judicial decision involves.”
Gordon Tucker (2006-
1. “The paper argues that those methods that have been used in the
Conservative Movement have been conceived in an overly narrow way, and that
this constriction of method has put Conservative halakhic practice at odds with
the historical consciousness that has been the root of the fabulously fruitful
intellectual and theological achievements of Conservative Judaism and its
scholars. Approaches to understanding the authority of religious law are no more
determined in our sacred texts than are approaches to understanding the
authority of the texts themselves. As long-standing as those approaches may
be, they are ultimately chosen by us, based on our philosophical and theological
2. “For now, I want simply to note that the virtually universal tendency to use
positivist analyses when doing law does not imply that positivism is the best tool
for answering every question at law. Sufficiently hard cases may stretch the local
successes of positivism beyond the limits within which they reside."
3. “The law is given cogency and support by the ongoing story of the
community that seeks to live by the law. This is true no less for religious than for
secular communities, and it is precisely what Robert Cover had in mind when he
wrote that “for every constitution there is an epic”. The ongoing, developing
religious life of a community includes not only the work of its legalists, but also its
experiences, its intuitions, and the ways in which its stories move it. This
ongoing religious life must therefore have a role in the development of its norms,
else the legal obligations of the community will become dangerously detached
from its theological commitments.”