CCAR RESPONSA

5760.2

Presumption of Jewish Identity

She'elah

A woman presents herself to a rabbi and states she wants to join the congregation. The woman is unknown to the rabbi, the congregation and the Jewish community. The rabbi inquires if she is Jewish and she states that she is. Does the rabbi accept her at her word, or is the rabbi obliged to conduct further inquiry as to her Jewish status? If further inquiry is required, what threshold of proof need be met? (Rabbi Joshua Aaronson, Perth, Australia)

Teshuvah

Jewish law, in general, determines the status of persons or things in either one of two ways. The first is edut berurah, or clear proof, whether in the form of eyewitness testimony[1] or other evidence.[2] The second is presumption, which itself can take two forms: chazakah, or "presumption" proper; and rov, the "majority" principle. The rules governing these processes are much too complex and detailed to summarize here.[3] Suffice it to say that Jewish law relies upon them as grounds for action in the absence of clear proof. There are many situations for which clear proof or documentary evidence does not exist, yet the court can determine the legal status of the things or persons at issue by means of an appraisal (umdana) of what was the case prior to the raising of the issue or of what is likely to be the case according to the usual behavior of persons or things. Indeed, the most fateful sort of legal decisions-i.e., those dealing with capital offenses-can proceed from judgments based upon chazakah and rov.[4]

Presumption has always played a crucial role in determining an individual's Jewish status. We customarily do not ask newcomers to supply proof of their Jewishness before allowing them to join our communities.[5] This custom is based upon the rule in Jewish law that when a person we do not know comes to us and claims "I am a Jew," we accept that claim on his or her word alone.[6] This rule is explained in several ways. According to some authorities, the claim "I am a Jew" needs no proof because "the majority (rov) of those who come before us are Jews"; therefore, we accept this person as a member of that majority.[7] Other commentators say that we accept the claim "I am a Jew" because we presume that a person would not lie about such an easily-discoverable fact.[8] In either event, the Jewish status of this person is established not by means of hard evidence but by the community's presumption that the individual is telling the truth. For this reason, it is common practice to accept as Jewish those who come to our communities and present themselves as Jews.[9]

 

How does this halakhic standard apply to the case before us? In theory, the rabbi could follow one of the above presumptions and accept this woman as a Jew on the strength of her claim alone. Yet the matter is hardly so simple. A presumption, as we have noted, is a determination of the status of a person or thing based upon a judgment as to what the status is likely to be; it operates in situations where we lack firm evidence to prove what that situation actually is. We think that there is serious doubt that these presumptions concerning Jewish status, which were formulated in an era when it was quite rare for non-Jews to seek to join the Jewish people, can be applied literally to the situation in our communities. To put this bluntly, it is no longer as "likely" as it once was that those who come before us are in fact Jews. This is not to say that these persons are necessarily of malicious intent or that they knowingly lie about their Jewishness, but rather that the once sharply-drawn definitions of Jewish identity are much less clear to many people today. An individual becomes a member of the Jewish people either through birth or through conversion.[10] Yet in our liberal society, where religion is often perceived as a strictly personal matter and where changing one's religious affiliation has become increasingly commonplace, many people take the position that "I am what I claim to be." In this view, religious identity is more truly established "internally," by one's heartfelt association with a particular community, than through adherence to "external," formal standards of membership. Many of us have dealt with individuals who regard themselves as Jewish but whose Jewish identity stems neither from birth nor conversion but from an emotional bond, a feeling of connection with us. Such persons might be encouraged to consider conversion to Judaism, but until they complete the conversion process they are not Jews. In addition, there are individuals who claim to be Jewish out of genuine misunderstanding of the rules that define Jewishness.[11] Under current conditions, to apply the old presumptions without modification-to say, in effect, that anyone who claims to be Jewish must be Jewish-is quite arguably tantamount to ignoring reality.

The foregoing remarks are not to suggest that these problems have reached crisis proportions. In the vast majority of cases, we are satisfied with an individual's statement that "I am a Jew." Indeed, it would be tragic were rabbis and congregations as a rule to greet newcomers with suspicion and probing questions. This would violate both our common sense of decency and the mitzvah of hospitality to strangers (hakhnasat orechim).[12] Yet there will be times when the rabbi, on reasonable grounds, will not be satisfied with the individual's claim of Jewishness. We will not attempt to define those "reasonable grounds"; that is a matter best left to the responsible and educated judgment of the rabbi, acting in his or her capacity as mara de'atra (local authority). When the rabbi feels that such grounds exist, he or she may inquire into the individual's Jewish status. Ideally, the inquiry will be restricted to questions of the "getting-to-know-you" variety. They should be unobtrusive and respectful of the person's basic human dignity; our tradition, as we know, prohibits us from causing another to suffer unnecessary shame and embarrassment.[13] Yet if the rabbi, mindful of these requirements, feels it necessary to ask for proof of the individual's Jewish status, he or she may do so. To make such determinations, however sensitive the subject matter, is quite simply part of the rabbi's job. And we trust that our rabbis will perform that task with diligence and with sensitivity.

CCAR Responsa Committee

. Mark Washofsky, chair; Walter Jacob; Yoel H. Kahn; Debra Landsberg; David Lilienthal; Rachel S. Mikva; W. Gunther Plaut; Samuel Stahl; Leonard B. Troupp; Moshe Zemer.

 

 

NOTES

 

and Bayit Chadash to Tur, Yore De`ah 268, fol. 215a; Shulchan Arukh, Yore De`ah 268:10 and Siftei Kohen, no. 21.

Arakhin 16b, based upon a midrash of the concluding words of Lev. 19:17, lo tisa alav chet, "do not bear a sin on his account"; Yad, De`ot 6:8.

 

If needed, please consult Abbreviations used in CCAR Responsa.