CCAR RESPONSA
The Synagogue Thrift Shop and Shabbat
5757.7
She’elah
My congregation is considering the opening of a thrift/consignment shop as a fund-raising vehicle. The retail experts tell us that such a store would not be economically viable unless it were open on Saturday. The shop would be off the premises of the synagogue and would be operated on Shabbat by a non-Jew.
Are there circumstances under which this arrangement might be acceptable according to our Reform Jewish understanding of Shabbat? (Rabbi Deborah R. Prinz, Poway, CA)
Teshuvah
A. Shabbat Observance and Reform Judaism
. In a recent teshuvah,1 a copy of which we enclose, this Committee considered the question of Shabbat observance in general and commercial activity on Shabbat in particular. We concluded that although Reform Judaism has dispensed with many of the details of traditional Shabbat observance, the very idea of Shabbat observance, of shemirat shabbat, retains its validity for us. The nature of Shabbat as a period of holiness requires not only that we mark it with special rituals and ceremonies but also that we refrain from performing on it activities which contradict the character of the day as we perceive it to be.
What are those prohibited activities? How should we go about identifying them? Our responsum suggests that the teachings and standards transmitted through Jewish tradition ought to enjoy a considerable presumptive weight in our thinking. We are free, of course, to define our own notion of Shabbat and to decide upon new and creative means of sanctifying it. We do not hesitate to set aside those aspects of traditional practice which strike us as irrelevant or outdated. Our primary goal, however, is to participate in the collective religious experience of our people. The Shabbat that we wish to observe and to teach to our children must correspond to our sense of contemporary values; yet it must also be an unmistakably Jewish Sabbath, one whose contours and rhythms are shaped and set by the heritage of Israel. 2
How do we arrive at a proper balance between these two desired elements in our religious life? Our Reform responsa literature has suggested a rule of thumb which we might term the “preferential option” for tradition. Tradition, that is, serves as our necessary Judaic starting point. When considering questions of observance, we begin with the standards and customs that we have inherited from our people’s past. Those practices enjoy a considerable degree of presumptive weight in our thinking. We seek to maintain them in the absence of compelling reason to alter or abandon them.3
In the case of Shabbat, this means that we must take seriously the traditional proscription of commercial activity (mekach umimkar; sale and gift) on that day. This prohibition, although not numbered among the thirty-nine categories of forbidden “work” (melakhah), is woven so deeply into the fabric of Shabbat observance that it is scarcely possible to imagine the Jewish Sabbath without it.4 Even in its liberal and tolerant approach to religious practice, Reform Judaism has steadfastly maintained that unnecessary economic activity should not take place on Shabbat.5 And if we show understanding toward those individuals and families who feel they must work on the Sabbath, we believe it to be entirely improper for a synagogue, the very institution entrusted with the teaching and transmission of Torah and Jewish heritage, to engage in commercial activity on that day.
There are, to be sure, instances when Jewish law demands that we set aside the Shabbat prohibitions, but this is not one of them. The question before us does not involve mortal danger, when the need to save life is said to “override” the Sabbath (pikuach nefesh docheh et hashabbat).6 Nor are we discussing an action such as berit milah which the Torah requires us to perform on a particular date that happens to coincide with Shabbat.7 Jewish tradition would not regard the congregation’s desire to raise funds either as a life-and-death situation or as a project which must perforce be carried out on Shabbat in violation of the proscriptions against commercial activity on that day.
One might, of course, make the argument that the Shabbat prohibitions ought to be set aside for the sake of the “greater good” of a congregation’s financial solvency. After all, leading rabbinical authorities have been known to transgress laws concerning Shabbat observance, such as the prohibition against conducting weddings on the Sabbath, on behalf of a high and noble purpose that could be achieved in no other fashion.8 This argument, however, presumes that synagogue fundraising is somehow a “higher purpose” than Shabbat observance. We have long rejected such a presumption, on the grounds that it contradicts our affirmation of Shabbat as a “higher purpose” in its own right, a sacred span of time that makes its own legitimate demands upon us.9 We do not perform weddings or funerals on Shabbat, even though these ceremonies are mitzvot, because “we encourage our members to make Shabbat a special’ day upon which we do not carry out duties and acts performed on other days.”10 We have urged that congregations refrain from scheduling tzedakah and social action programs on Shabbat when these involve traditionally-prohibited labor, for “we do not perform a true mitzvah if it is done by transgressing another command.”11 And of particular relevance here, we have strongly discouraged the scheduling of synagogue business meetings and fundraising projects on that day.12
We have, in other words, found Shabbat to be at least as great a good and as noble a purpose than the other goals whose pursuit would conflict with its observance. This is especially true in light of our movement’s increasing emphasis during recent years to strengthen Shabbat observance among our people.13 For a synagogue to operate a commercial enterprise and to collect money on Shabbat would violate the holiness of that day as we Reform Jews understand that concept.
B. Gentile Employee on Shabbat.
Does the suggestion that the synagogue hire a Gentile to operate the store on Shabbat alter the above conclusion? At first glance, the answer appears to be “no,” since the tradition forbids us to ask a Gentile to perform labor on Shabbat that we ourselves may not perform.14 The reason for this, however, is that an employee is considered the agent of his or her employer, and any action taken by an agent is deemed to be the action of the one who appoints that agent.15 Based upon this theory, it might be possible to construct the business relationship between the synagogue and its non-Jewish worker so that the latter would not in point of law be the “employee” or “agent” of the congregation. The congregation, for example, could draw up legal documents defining its connection with the worker as that of landlord to tenant or lessor to lessee. In return for the payment of a fixed fee to the synagogue, the worker would be allowed to keep all the proceeds from the store’s operation on Saturday. Since he or she would be “working for his/her own benefit,”16 the Gentile would not be classified as the employee or agent of the congregation. Jews have for centuries resorted to such legal devices in order to engage in a variety of business relationships with Gentiles and yet observe the letter of Shabbat law.17 Perhaps, it might be argued, an arrangement of this sort would enable the synagogue to operate its thrift shop on Shabbat.
Still, the tenancy relationship would not truly solve the congregation’s problem. In addition to the practical difficulties (can the synagogue set the “fixed fee” high enough so that it is feasible to operate the store on Shabbat yet low enough to attract the services of a competent worker?), there is the matter of appearances, of mar’it ayin. Even though the formal halakhah (Torah law; dina de’oraita) permits a Jew to lease a business to a Gentile for operation on Shabbat, the rabbis forbade this arrangement under the following circumstances: 1) when it is widely known that the business is Jewishly-owned, and 2) where it is not the common local practice to lease such a business. The rabbis feared that people seeing the business in operation on Shabbat
would suspect that the Gentile was in fact the employee of the Jewish owner, working for that owner and not for himself.18 Under traditional halakhah, that concern is certainly present in our case. So long as it is generally known that the thrift shop belongs to the synagogue, most people would presume that the worker, though in point of law a lessee, is in fact an employee or agent of the congregation which owns and operates the store.
We share that concern. We recognize, to be sure, that the principle of mar’it ayin is in one important respect a difficult one. Rabbinic tradition utilizes it as a means of prohibiting activities which according to the law of the Torah are perfectly permissible, on the grounds that these acts give the “wrong impression.” To do so suggests that, at a certain level, appearances are more important than substance, and that is a sentiment we most definitely do not accept. Yet in another respect, mar’it ayin retains its ethical power for us, as the age-old expression of the maxim that one’s actions must not only be proper but appear to be proper as well. Our religious institutions are charged with the sacred task of teaching Torah, and we accomplish this task in the example we set no less–and perhaps more–than in the words we preach. If we truly believe, as we say we do, that the observance of Shabbat is a central religious goal for Reform Jews, then surely our behavior must exemplify that belief. Whatever its legal arrangement with the Gentile worker, we seriously doubt that the congregation can operate its thrift shop on Shabbat without giving the impression that it is conducting commercial activity on that day.19 Considering the importance we attach to the observance of Shabbat as a day of rest, of worship, and of study, this is not the example that our synagogues should set for our people.
We therefore counsel your synagogue against operating its thrift shop on Shabbat.
NOTES
1Responsa Committee no. 5756.4, “Presenting a Check for Tzedakah at Shabbat Services.” That teshuvah draws heavily upon the conceptual and descriptive language of the CCAR’s Gates of Shabbat: A Guide for Observing Shabbat (New York, 1991), 49-59.
2For another expression of this idea, see Gates of Shabbat, 57: “In creating a contemporary approach to Shabbat, Reform Jews do not function in a vacuum. Although we may depart from ancient practices, we live with a sense of responsibility to the continuum of Jewish experience.”
3For references, see Responsa Committee no. 5756.4 at note 20.
4See ibid., at notes 4-7. Biblical tradition takes it for granted that commerce is incompatible with the observance of Shabbat; see Isaiah 58:13-14 and Amos 8:5. Halakhic authorities dispute whether mekach umimkar is prohibited on biblical or rabbinic grounds.
5 Gates of Shabbat, 57.
6BT Yoma 85b; Yad, Yesodey Hatorah 5:1ff; SA YD 157.
7BT Shabbat 132a on Lev. 12:3; Yad, Milah 1:9; SA YD 266:2. Since the circumcision must take place on the eighth day of a boy’s life (unless postponed for reasons of his health), aspects of that surgery which otherwise violate the prohibitions against melakhah indeed, be performed on Shabbat should that be the child’s eight day.
8The most famous case is undoubtedly that of R. Moshe Isserles, who performed a wedding on Friday night after protracted negotiations over the financial arrangements of the marriage made it impossible to conduct the ceremony before sundown. His concern was kevod haberiyot, or simple human decency: he wished to spare the families the gossip and embarrassment that would have resulted from delaying the wedding until Sunday. See Resp. HaRema, no. 125.
9See Teshuvot for the Nineties, no. 5755.12, 165-168: “The fact that Shabbat conflicts’ with another mitzvah or worthy cause does not mean that it is Shabbat which must give way. Indeed, the reverse is often the case.”
10American Reform Responsa, no. 136. See also Gates of Shabbat, 58.
11 TFN, no. 5753.22, 169-170. See also Contemporary American Reform Responsa, no. 176 and Responsa Committee, no. 5756.4.
12Questions and Reform Jewish Answers, no. 60; CARR, no. 177; Reform Responsa, no. 8.
13In addition to the various Reform responsa responsa cited here, we might mention the tone and tenor of such recent publications of the CCAR as Gates of Shabbat; Gates of the Seasons (1983), 15-33; and Shabbat Manual (1972). Each of these works underscores the theme developed in this responsum: namely, that Shabbat is not simply a “good day” available for the scheduling of “good deeds” but rather a mitzvah, a sacred observance in its own right, which places upon us legitimate demands that may not be in keeping with other activities, however socially useful they might be.
14The nature of this prohibition is a matter of dispute in the rabbinic sources. Some hold it to be Toraitic, based on the wording of Ex. 12:16; see Mekhilta ad loc. (ed. Horovitz-Rabin, 30-31). The talmudic tradition, on the other hand, sees the prohibition as rabbinic in origin (amirah lenokhri shevut; BT Shabbat 150a, Eruvin 67b and elsewhere), adopted in order to protect Shabbat: should we grow accustomed to hiring Gentiles to labor on Shabbat, we might be led to take Shabbat less seriously and come to perform these labors ourselves (Yad, Shabbat 6:1). See Nachmanides to Ex. 12:16, who argues that the midrash in the Mekhilta is but an asmakhta, a symbolic link of the halakhah to the Torah verse but not its true source.
15 Shelucho shel adam kemoto; BT Kiddushin 43a and elsewhere.
16See SA and Isserles, OC 243:1 and the introduction of the Mishnah Berurah to the chapter, on the subject of arisut, or tenancy. A tenant (lessee) “works for himself” (ada`ata denafshey avid) and not for the lessor.
17One example is shutafut, or partnership: a Jew and a Gentile who jointly own a business may arrange to operate it on Shabbat by means of a carefully-delineated division of its profits. See SA OC 245.
18 BT Avodah Zarah 21b; Yad, Shabbat 6:15 and Magid Mishneh ad loc; SA OC 243:1 and Mishnah Berurah, introduction to chapter.
19See Numbers 32:22 and M. Shekalim 3:2: we must be blameless in the sight of people just as we must be blameless in the sight of Heaven.
20 On the other hand, this concern might not apply under another set of circumstances. For example, the congregation might determine to operate the store jointly with a non-Jewish organization, making it clear in a public way (as well as through formal legal agreement) that the proceeds of the store’s Saturday operations go to that organization and not to the synagogue. We were not, however asked concerning such an arrangement; the she’elah before us involves a congregation which wishes to keep the proceeds of its Shabbat operation.
If needed, please consult Abbreviations used in CCAR Responsa.