By Tzvi Zohar | 17/12/2009
Tzvi Zohar, who for many years has engaged in the study of the halakha of conversion, together with Prof. Avi Sagi, asserts that: "From among the Sages of Israel in the Mishna, to the Talmud, medieval commentators, and great rabbis, there has not been a single authority who conditioned the validity of conversion on a person's internal intentions to observe the commandments. An opinion requiring such observance appeared first in 1876; today, no contemporary rabbi is obligated in any way to adhere to this, of all possible positions"
Did you ever have the experience of having been raised and educated on a particular perspective that seemed obvious to you, but when you re-examined the matter independently, you realized that everything looked different than what you had previously believed?
This is exactly what happened to me in all that relates to the essence of halakhic conversion.
At the end of the 1980s, an Orthodox rabbi from the United States contacted the Center for Contemporary Halakha at the Hartman Institute in Jerusalem, asking its members – my friend Avi Sagi and myself – to make an inquiry for him regarding the foundations of conversion in halakhic sources. During this period, public opinion in Israel was not much concerned with the topic of conversion. This was a few years prior to the large wave of immigration from the former Soviet Union, and the few people applying for conversion were women from abroad who had volunteered on a kibbutz and became engaged to a kibbutz member; it was precisely for this population that Rabbi Goren established the first conversion institutes. We had not engaged in this area of halakha previously, but held very clear opinions on the matter.
Our opinion regarding halakhic conversion was based on everything we knew and had internalized since early childhood. Both of us had grown up in the Gush Dan area, were raised in educational institutions in the style of "HaMizrahi" (the Torah and Labor movement, predecessor of the National Religious Party) and were members of the Bnei-Akiva Youth Movement (admittedly, my father was much more active than I was), and had absorbed, each in his own way, the sensibilities and beliefs regarding conversions that were then accepted in the social-religious world in which we lived.
The Convert's Motives
The opinion that Avi Sagi and I maintained at the time when we began studying the topic, was that conversion was a transition to the Jewish faith from another religion. Therefore, we concluded that the formal conversion ceremony, which of course had to take place under the supervision of an ordained rabbi, was only a formal procedure, in which the official representative of the Jewish religion affirmed that the intentions of the candidate were accepted by the religious community.
If this opinion was correct, then a conversion ceremony carried out without proper religious intention was, of course, invalid. Whoever underwent such a ceremony, but without the proper intentionality, would not be considered Jewish. Therefore he would also not be counted in a prayer quorum, and his marriage to a Jewish woman be considered void. And yet, when we began looking into the foundations of the relevant Jewish law, we found a source, entitled "Tractate Conversion," that states:
A person who converts, whether for a woman, for love, or out of fear – is not a convert. Rabbi Nehemiah and Rabbi Yehudah thus used to say: All of those who converted in the days of Mordechai and Esther are not converts, as it is written (Es. 8:17): "And many of the people of the land professed to be Jews, for the fear of the Jews had fallen upon them." And any one who does not convert for the sake of heaven, is not a convert.
An identical position is presented in the name of Rabbi Nehemia in a beraita quoted in the Babylonian Talmud (Yeb. 24b). Both sources therefore support the opinion that we had internalized in our youth. Much to our surprise, however, we found that the Mishna, the Babylonian Talmud, the post-mishnaic commentators (geonim), and the medieval commentators (rishonim), reject this position. All of the above entirely disagree with the stated opinion, and stipulate unequivocally that a conversion ceremony in which the participant has no religious intentions and wants to convert for a different purpose is entirely valid. Moreover, among the halakhic authorities there was a debate surrounding the very question of whether the conversion court even needed to take an interest in the motives of the convert. In the following Talmudic story (Shab. 31a), it is patently clear that Hillel the Elder did not think that the motives of the proselyte, or his knowledge of Judaism, were in any way relevant:
Our Rabbis taught: A heathen once came before Shammai and asked him, "How many Torahs have you?"
"Two," he replied, "the Written Torah and the Oral Torah."
"Regarding the Written – I believe you, but about the Oral – I don't believe you. Convert me on condition that you teach me the Written Torah."
Shammai scolded and repulsed him in anger.
He went before Hillel, who converted him.
On the first day, he taught him: alef, bet, gimel, daleth; on the following day, he reversed the order.
"But yesterday you did not teach me thus," he protested.
He replied: "Didn't you then rely upon me? Then rely upon me regarding the Oral Torah as well."
And again,
It is told of a non-Jew who came before Shammai and said to him: "Convert me by teaching me the entire the Torah on one foot." Thereupon he pushed him away with the builder's measuring stick in his hand. He then went before Hillel, who converted him. He said to him: "What is hateful unto you, do not do to your fellow. That is the whole Torah – the rest is commentary: go study!"
And again,
A non-Jew passed behind a House of Study and heard the voice of a scribe reciting: "And these are the garments which they shall make, a breastplate, and an ephod" (Ex. 28:4). He asked: "For whom are these?" "For the High Priest," he was told. Then the non-Jew said to himself: "I will go and convert that I may be appointed High Priest." He went before Shammai, saying to him: "Convert me so that I may become the High Priest." He pushed him away with the builder's measuring stick in his hand. He went before Hillel, who converted him. He said to him: "Can any man be made a king but he who knows the arts of government? Go and study the arts of government!" He went and read. When he came to the verse: "And the stranger who draws near shall be put to death" (Num 1:51), he said to him: "To whom does this text apply?" He said to him: "Even to David, King of Israel." Thereupon the proselyte drew the conclusion himself: "If of Israel, who are called 'Sons of the Makom' and who in His love for them He called them 'Israel my son, my firstborn' (Ex. 4:22), it is written: 'And the stranger who draws near shall be put to death,' how much more so a proselyte, who comes with his staff and wallet!"
Then he went before Shammai and said to him, "Aren't I ineligible to be High Priest? Is it not written in the Torah, 'And the stranger who draws near shall be put to death'";
He went before Hillel and said to him: "'O, modest Hillel, may blessings rest on your head for bringing me under the wings of the Shekhinah."
This last sentence in the story makes clear that the narrator's opinion is that the correct approach is that of Hillel, and not Shammai. And indeed, important rabbinic authorities from the periods of gaonic and medieval commentary refrained from requiring that the rabbinic court take an interest in the motives of the prospective convert (for example, Rabbi Yitzhak al-Fasi, one of the great sages of 11th-century North Africa and Spain, and Rabbi Ya'akov Bar-Asher, author of the work Arba'a Turim, who lived in Spain in the 14th century). Maimonides, and in his footsteps Rabbi Joseph Karo, author of the Shulhan Arukh, assumed a different approach, taking the middle ground: When advance planning is possible, the rabbinic court should ensure that the prospective convert indeed is converting for the sake of Heaven. However, retroactively, if the matter is not looked into and a proper conversion ceremony was performed, the conversion is valid if it transpires that the non-Jew converted for another purpose (such as to win the favor of his lover, for monetary advantage, for honor, and the like).
Immersion and Circumcision
Moreover, if we return to the Talmudic story about Hillel, we see that despite the mistaken perceptions and problematic approach of those seeking to convert in each of the cases, Hillel first performed the conversion, and only afterwards got around to teaching. Thus, not only did he not disqualify prospective converts on account of dubious motivation, but he even converted them when they did not know a thing about Judaism, and yet the conversion was still considered valid. In a manner similar to Hillel, the main Talmudic source dealing with the conversion ceremony (a beraita quoted in the Babylonian Talmud, Yeb. 47a-b) requires no formal study prior to the ceremony. And yet, in contrast to Hillel, this source does require that during the conversion ceremony the rabbinic court convey particular information to the proselyte:
Our Rabbis taught: When a man who comes to convert at the present time, one is to say to him: "What is it that you behold that brings you to convert? Do you not know that Israel at the present time is persecuted and oppressed, despised, harassed and overcome with afflictions?" If he replies, "I know and yet am unworthy," he is accepted immediately, and given instruction in some of the minor and major commandments. He is informed of the sin of not leaving gleanings, the forgotten sheath, leaving a corner of the field, and the Poor Man's Tithe. And he is informed of the punishment for the transgression of the commandments. He is also told: "Be it known to you that until you came to this realization [the conversion], if you ate suet you were not punished by excision (karet), if you profaned the Sabbath you were not punished with stoning. And now, if you eat suet, you shall be punished with excision, if you profane the Sabbath, you shall be punished with stoning." And just as he is informed of the punishment for the transgression of the commandments, so is he informed of the reward granted for their fulfillment. He is told, "Be it known to you that the world-to-come was made only for the righteous, and that Israel at the present time are unable to bear either too much prosperity or too much suffering." However, we are not to overwhelm him or be too strict with him.
Moreover, after describing the conversion ceremony, which includes circumcision and conversion, the beraita concludes with the assertion: "When he emerges after his immersion, he is considered a Jew in all respects." The Talmud asks what the halakhic implication of this assertion is, namely: From the moment that the ritual is over, is the proselyte is considered a Jew in all respects? The Talmud responds that from the moment that the conversion has been completed, if a proselyte regrets his conversion and resumes living as an idol worshiper, and afterwards marries a Jewish woman before two valid witnesses, the marriage is to be viewed as a marriage by a Jew from birth who converted to another religion, and is valid. In other words, the Talmud recognized the possibility that after the conversion, the convert might not live as an observant Jew and might return to his former ways, as an idol worshipper. Therefore, the Talmud interprets the beraita as asserting that the religious behavior of the convert subsequent to conversion does not in any way affect his status as a Jew. This is also the ruling of Maimonides and the Shulhan Arukh (Mishneh Torah, the Halakha of Prohibited Conjugations, 13:17; Shulhan Arukh, Yoreh Deah, 268:12).
After considering all of these sources we asked ourselves: if the validity of conversion is not contingent on a motive "for the sake of Heaven," or even on a minimal knowledge of Judaism or the religious behavior of the convert after the conversion ceremony, how can one continue believing that intention is the stuff of conversion and its very essence?
The halakhic facts that we uncovered undermined the perception that we had held when we embarked on the research. We were embarrassed: what, therefore, is the nature of halakhic conversion? We decided to consider the following question: What, according to the halakhic sources, are the necessary conditions without which conversion is invalid?
From the Talmudic period onwards, we found that all halakhic authorities agreed that for a woman to be considered a convert, it was essential for her to immerse in the ritual bath. In addition, it was essential that the immersion take place under the auspices of a rabbinic court, for the purposes of which such a court is defined as the convening of three Jewish men who are not viewed as criminals (and not necessarily rabbis). In order for a man to be considered a convert, an additional condition must be fulfilled, namely, that prior to the conversion, he undergo circumcision.
Based on these data, we understood that our original view was in error. We realized that the essential dimension in conversion, according to halakha, was not the convert's religious-subjective intention, but rather the ritual-symbolic dimension – through circumcision or immersion. Following this halakhic ceremony, the convert is considered a "new person," one who has now been "born" as a Jew. This was an angle that shed new light for us on the adage appearing in a number of Talmudic sources, declaring that after conversion, the convert is similar to a newborn infant: "A proselyte who has converted can be likened to a newborn babe."
It thus transpires that according to halakha, there is only one way to be a Jew: birth. Some people are born into the Jewish people through biological birth to a Jewish mother, and some are born into the Jewish people in a ritual birth, through the conversion ceremony. Everyone who is born as a Jew must uphold the commandments. Why? Since he is born into a group that committed to doing so in the covenant at Sinai. According to halakha, this is the reason that a Jew from (biological) birth is obligated to uphold the commandments – whether or not he knew about them – and this is also the reason that a convert is obligated to uphold the commandments. As Rabbi Natan Bar Yosef, a student of Nachmanides, explains: Every Jew is bound by the Torah's prohibitions, and commanded to uphold its precepts. Stated otherwise: it is not that the convert is obligated to uphold the commandments and as a result he becomes a Jew; rather he becomes a Jew and therefore, he becomes obligated to uphold the commandments.
Later Halakhic Rulings
The conditions for conversion mentioned above – circumcision (for men), immersion, and a rabbinic court, are agreed upon, as stated, by all halakhic authorities from the Talmud to the present. It is in the 12th century that we first see a new opinion on the matter: in an attempt to resolve conflicting issues, some of the Tosafists raised a new perspective, according to which if a rabbinic court was present during a preliminary stage of conversion known as the "acceptance of the commandments," the conversion would be considered valid, even if the court was not present during the immersion (Tosafot Yeb., 45b, "Mi she-lo tavlah"). If so, according to this perspective, the essential conditions without which the conversion is invalid are: "acceptance of the commandments" before a rabbinic court, circumcision (for a man), and immersion.
Yet the Tosafists did not explain what they meant by the term "acceptance of the commandments"; even Rabbi Joseph Karo's position in the Shulhan Arukh that "acceptance of the commandments" is an non-expendable element, does not explicitly specify his intention. Though some people today reason that the obvious interpretation of this term is the obligation to uphold the commandments after conversion, this was not at all the accepted opinion among the medieval rabbinic authorities. This is because the Talmud had already asserted that the convert's failure to uphold the commandments as such did not affect the validity of the conversion, and therefore, what was the point of looking into the question of the future? Therefore, Nachmanides, who lived in Spain in the 13th century, not long after the appearance of the new opinion of the Tosafists, understood them as saying that the convert had undertaken the obligation before the rabbinic court to complete, not in their presence, the commandments of the conversion process, i.e. circumcision and ritual immersion. Others explained that the Tosafists were demanding "taking on the commandments" in the sense of "expressing a desire to convert after receiving [minimal] information regarding the commandments," as enumerated in the abovementioned beraita in Tractate Yebamot 47. Thus, for example, did Rabbi Menachem HaMeiri, one of the great medieval commentators who lived in Provence around 1300, write: "…Afterwards, he is informed of the yoke of some of the lighter commandments and the graver ones, and their punishments… if he changes his mind, he goes on his way. And if he says 'despite this' [I still want to convert], he is received and circumcised immediately." Yet other authorities understood "taking on the commandments" as referring to the will or general agreement to become a member of the Jewish religion, agreement that could have been expressed in alternate ways: a declaration, or willing participation in ritual immersion.
The Tosafists, then, do not relinquish the textual-symbolic dimension of conversion, which takes place on the body of the convert, but add to it a certain dimension of consciousness. The precise content is a matter of debate, but in any case, it is dissociated both from the motives of the convert, and from the essence of his future behavior. For our matter, this additional requirement, which first appears among the Tosafists, does not alter the stipulation that halakhic conversion is essentially a ritual of transition. As in the case of a person born a Jew, the behavior of the convert following re-birth does not change his basic status: "A Jew, even if he has transgressed, is still a Jew!"
In 1876, a new opinion emerged in the halakhic literature.
Rabbi Yitzhak Shmelkes, the rabbi of the city of Lvov in Galicia, expounded on the matter in a long halakhic responsum to the conversion ceremonies conducted by Orthodox rabbis in Germany for the non-Jewish wives of secular Jewish men. Rabbi Shmelkes assumed that after the conversion ceremony, these women would not act in accordance with Torah precepts, and wrote: "A person who converts, and takes upon himself the yoke of the commandments: if he does not wish to uphold them – the Compassionate One is concerned with the intentions of the heart – he is not considered a convert" (Beit Yitzhak 2:100). Rabbi Shmelkes believed, apparently, that when the stage of "taking on the commandments" arrives during the conversion ceremony, the intention of the rabbis was to the convert's declaration that he is committed to upholding the commandments.
As I mentioned above, this interpretation of the essence of the "taking on the commandments" stage is not at all obvious. Moreover, Shmelkes stipulated that even if the convert made such a declaration, it was insufficient as long as no corresponding internal intention was present.
This responsum was radical. It returned a view to the halakhic arena according to which the intention in one's heart – and not a ceremonial act – was determinative. Such a view had not appeared in the halakhic world since Rabbi Nehemia and Rabbi Yehudah had ruled that " any one who does not convert for the sake of heaven is not a convert," and, as stated, all the halakhic authorities since Rabbi Yehudah Ha-Nasi and onward rejected their opinion. In addition, this view radically changed the essence of the internal intention required of the convert. Until 1876, one spoke of "intention" in the sense of aspiring to fulfill an objective: yet the very fact that the prospective convert reported to the gates of the rabbinic conversion court and requested to convert was the sign of such an aspiration. Until then, a rabbinic court had never been asked to taken an interest in the future behavior of the convert, let alone conceiving of conditioning the validity of conversion [retroactively!] upon the internal intention of the convert to follow through on any particular behavior.
What we are witnessing, then, is a halakhic innovation of historic proportions. To Rabbi Shmelkes' credit, it should be noted that he was aware that his words contradicted the well known halakhic rule that unarticulated intentions have no legal standing: "Matters of the heart have no substance" (Devarim she-ba-lev einam devarim). According to this rule, if a person gives testimony, or commis to something or takes an oath before a court, he is legally-halakhically obligated to the accepted and shared understanding that a certain group of speakers of the language and/or a particular group of halakhic authorities attribute to the words he uttered. A claim that he or others makes to the effect that he is not bound by the official content of his words will thus not be accepted, his subjective intentions notwithstanding.
The original example of this rule appears in a beraita in Tractate Shevuot (29a; 39a), according to which the private intentions of the oath-taker are not taken into consideration… consider the oaths taken by the Israelites in the desert to uphold the commandments of the Torah! According to this midrashic-exegitical tradition, Moses knew that when the Israelites would be asked to uphold the commandments, in their hearts they would feel otherwise and have no intention of upholding them, in order to later claim that they were exempt from their oath. Moses thus said to them: "Know that I take your oath not by your authority, but my authority and by authority of the Heavenly Court!" According to the Talmud, then, the rule that "Matters of the heart have no substance" should apply first and foremost to the obligation to uphold commandments!
Rabbi Shmelkes found a particularly unsatisfactory textual solution to the problem, to which Rabbi Haim Ozer Grudzhniski, one of the greats from the succeeding generation, replied "This is no kind of evidence" (Responsa Achiezer, 26:5). He went on to write that there is no convincing textual basis to Rabbi Shmelkes' approach, but rather, it must be based in a halakhic hypothesis (sevara). Ultimately, he ruled that a conversion lacking any internal intent for upholding the main commandments between man and God is invalid, even retroactively, even if carried out by an Orthodox rabbi. Even more astonishing than the halakhic innovations in this position, is that over time it became increasingly widespread, first among the ultra-Orthodox, and ultimately in other Orthodox circles. How can this historical turnabout be explained?
First of all, the approach that identifies conversion as a deep, internal decision that takes place in the soul of a person who leaves the religion of his birth and joins another religion, corresponded to the widespread view of conversion in Christian Europe at the time. According to this approach, the essence of conversion is not an "external" ritual act, but rather, the ritual is a kind of public affirmation of the definitive act of conversion, which had taken place earlier within the person's self and soul. In 19th-century Europe, at a time when various nations wished to grant emancipation to the Jews as a religious community prepared to take up membership in the nation of the majority society, it was very tempting to characterize the Jews as a religious group, and not as a nation. In keeping with this, a shift occurred from emphasizing the textual-symbolic dimension of conversion (circumcision and ritual immersion), according to which conversion was a rebirth into a national community, to an emphasis on the internal intent of the convert to uphold the commandments, particularly those involving obligations to God as opposed to one's fellow; according to this new emphasis, entering the faith was a total transition and conversion to a new faith group.
And yet, there is an additional, even more powerful explanation for the turnabout, which places the radical shift in the context of the internal-Jewish culture war that has been waging since the mid-19th century around the question of: What is the basis of Jewish identity? During this period, the Reform Movement, which was gaining in momentum, claimed that the basis of Jewish culture was religious, but did not pose a halakhic demand for upholding the 613 commandments; likewise, various secular perspectives were taking shape, first and foremost the Zionist perspective, according to which Jewish identity is fundamentally a national identity. At odds with this view was the Orthodox perspective, which predicated Jewish identity on the observance of practical commandments; the main difference between this approach and others was not in the realm of precepts dictating how one must relate to his fellow, but precepts pertaining to the worship of God. The open structure of modern society did not enable those with an Orthodox view, to their great regret, to obligate other Jews to keep in line with their perspective. Moreover, they could not deprive these Jews – who in their opinion had betrayed true Torah Judaism – of their title, "Jew," since halakhic tradition itself determined that "A Jew, even if he has transgressed, is still a Jew!"
However, there was still one human group on whom the exponents of said perspective could force to conform to the Orthodox approach: the group of non-Jews seeking to convert. Thus it emerged that an approach from which Jews-from-birth are excluded de facto has in recent years been applied with great force precisely on those who seek to become Jews by choice.
The Granddaughter Question
The growing predominance of the view of Rabbi Shmelkes and his ilk in recent years is apparent in processes in the history of the rabbinic establishment during its brief history in the State of Israel. In the early years of the State, conversion in Israel was permitted for candidates who prepared for conversion through a private teacher, where it was known that they would not become "religious." Today, the official position of the rabbinic conversion courts in the State of Israel is that one is eligible for conversion only if he has completed 400 hours of study at an official conversion institute and taken on a commitment before a rabbinic court to uphold all of the commandments of the written Torah, all the commandments of the Oral Torah, and all of the "kosher" Jewish practices – and only on condition that the court is convinced that his intentions are sincere. In the case of a young man awaiting IDF recruitment, one can force him to study for some time in a yeshiva prior to induction; in the case of a young woman, she will be told to avoid the IDF and instead, enroll in national service. The court did not even stop at these requirements for the convert himself, but also posed a demand on his family: converts must transfer their children to religious schools, and their Jewish-born spouse is required to become more observant as a pre-condition for their conversion.
In other words, in the State of Israel, and to a large extent in the Diaspora as well, the official Orthodox position is that the transition from a mixed family to a Jewish family will only be allowed if the family is religiously observant. If the rabbinic judges believe that following conversion, the family will not conform to this model, they will not carry out the conversion. In other words, the prevalent Orthodox policy is to favor the continued existence of the mixed family rather than to grant de-facto legitimacy to creating a family in which everyone is a Jew, but not a religious Jew.
Surprisingly, this rabbinical-establishment approach to the essence of conversion, has also been adopted by prominent secular leaders in Israeli society. On second thought, perhaps this is not so surprising: since most secular Jews have no direct access to Jewish text; many of them blindly believe that the tradition as presented by the rabbinic ultra-Orthodox establishment, is authentic. A clear expression of the secular internalization of the ultra-Orthodox approach was exhibited in recent years by Shinui Party member Avraham Poraz who, while serving as Minister of the Interior, was asked: "Since conversion is a process of entering the religion, why do the Israeli political frameworks infuse it with a national significance?" His response was that the State of Israel should not attribute such a significance to conversion, and therefore, any connection between conversion and eligibility for Israeli citizenship must be severed. Influenced by this approach, bureaucrats at the Interior Ministry have been heaping problems upon converts seeking to exercise their right to receive Israeli citizenship.
Is this policy really what is best for the Jewish people today? In my opinion, the answer is a resounding no.
Among the Jewish people today, marriages between Jewish men and non-Jewish women, and the reverse, abound. Until approximately ten years ago, we might have convinced ourselves that this is an affliction of the Diaspora, and that it won't happen to us. Since then, an enormous and welcome wave of immigration from the former Soviet Union has flooded Israel, and many foreign workers have also arrived in the country. Today, hundreds of thousands of people in Israel live in mixed marriages and mixed families, and every day, new unions of this type are formed. A young Jewish Israeli man who fell in love with a new immigrant he met in the IDF or at the university, whose father is Jewish and mother is a non-Jew, can make a life with her without a Jewish wedding ceremony – they can get married abroad, or marry by contract at an attorney's office. The Rabbinate's ostensible monopoly on marriage in Israel does not and cannot prevent such phenomena.
The sole alternative to intermarriage in the modern world is conversion. The interest in having the non-Jewish partner convert far exceeds the question of the personal motives of the non-Jewish partner in the relationship. It is an overriding interest of the Jewish people: one cannot prevent the creation of mixed couples, but through conversion before or after marriage, it is possible to reduce to the extent possible the phenomenon of mixed families, and in so doing to prevent the loss of the Jewish side in these unions – and, needless to say, the loss of their sons and daughters – to the nation. And anyone who is in touch with reality, knows that such an approach will also prevent many personal and family tragedies.
Is this kind of conversion permissible according to halakha? If one accepts the approach of Rabbi Shmelkes and his successors, the answer is no. How could we enable the conversion of non-Jews who have no intention of becoming religious, since in any case, such a conversion would not be valid, even retroactively?
But must we necessarily accept this position? Absolutely not. It is true that a halakhic authority today would find it difficult to rule against the Shulhan Arukh and the medieval authorities. However, among the Sages of Israel in the Mishna, Talmud, and later commentators, there is not a single authority who conditioned the validity of conversion on the internal intent of the convert to uphold the commandments. Moreover, not even one of them conditioned the validity of conversion on the convert's declaring before a rabbinical court during his conversion that he intended to observe the commandments; and not even one required that the court ask him whether he intended to do so. Even those rabbis (such as Rabbi Yosef Karo, author of the Shulhan Arukh) who wrote that valid conversion requires "accepting the commandments," did not interpret the this term as "undertaking an obligation to uphold the commandments."
An opinion requiring a commitment to uphold the commandments, and that posits such an internal intent as an essential condition for valid conversion first appeared in 1876; no contemporary rabbi is obligated in any way to adhere to this, of all possible positions.
Moreover, many important rabbinic authorities who lived at the time of Rabbi Shmelkes, as well as authorities who issued opinions in times that were much closer to the circumstances in which we live, did not accept this view, but rather continued after the original manner of the Talmud and the medieval commentators.
I shall refer to four of them.
Rabbi Shlomo Kluger, one of the great rabbis of Eastern Europe in the 19th century (d. 1869), railed against another rabbi who believed that accepting the commandments is the essence of conversion, rather than circumcision and immersion: "The acceptance of the commandments is only a mechanism, and the essence of conversion is circumcision and immersion. And note, accepting the yoke of the commandments without circumcision and immersion is nothing. And the reverse: if one were circumcised and immersed for conversion, even if he did not accept the yoke of the commandments beforehand, according to the Torah he is most certainly a proselyte. The prior acceptance of the yoke of the commandments is only [a] rabbinic [requirement]" (Responsa Tuv Taam ve-Daat, Telita'a edition, 2: 101)
Rabbi Yosef Mashash (1892-1974) was one of the great rabbis of Morocco in the 19th century – perhaps the greatest. He wrote that the conversion of any person who wished to convert should be permitted, even – and particularly – in the case of intermarriage. Rabbi Mashash did not condition conversion on an obligation to uphold the commandments, and wrote that practically, the custom in all of North Africa (Tunis, Algeria and Morocco) in the mid-20th century was indeed to proceed with the conversion in such situations ("Otsar Ha-Mikhtavim," par. 1975, Responsa Mayim Hayyim, 2:108). Rabbi Moshe ben Shimon Ha-Cohen (1906-1966) who was the head of the rabbinic court in Djerba, Algeria, and served as a justice in Tiberias after immigrating to Israel, ruled that it is permissible and appropriate to resolve the problem of intermarriage in the State of Israel by converting the non-Jewish side, even if it is reasonable to assume that after conversion, the family continues to conduct a secular lifestyle a send its children to non-religious schools (Responsa Be-Hashiv Moshe, 50, 51). And Rabbi Ben-Tsion Meir Hai Uzziel (1880-1953) ruled in 1951 that in all classic halakhic literature, there is no condition according to which the convert shall be required to uphold the commandments, and that there is no source requiring the court to look into whether he actually intends to uphold them; therefore, "according to the Torah, it is permissible and a mitzvah to accept male and female converts, even when we know that they will not uphold all of the commandments… and we are commanded to create such an opening for them. And if they do not uphold the commandments, they will bear responsibility for their iniquity, and we will have upheld ours" (Responsa Piskei Uzziel, 25).
It is difficult to escape the feeling that the contemporary rabbis whose rulings are preventing conversion in cases where it is predicted that the convert and his family will not live as observant Jews, are struggling not against the phenomenon intermarriage but rather against the legitimization of a non-religious view of Jewish existence. In so doing, the are denying the Jewish people the only practical way of extricating itself from the many existing and future cases of mixed families.
I shall conclude with an anecdote I heard from Rabbi Haim David Ha-Levi, may his memory be for a blessing, who, until his passing in 1998, served as the Chief Rabbi of Tel Aviv. I convey the story as he related it, in his words:
One day, a number of the rabbis presiding over the rabbinic court in Tel Aviv got together. One of the justices, who had an ultra-Orthodox perspective, boasted to me and those present, that he was very strict regarding conversion, and never allowed anyone to convert. I said to him: "For this reason, your granddaughter will marry a goy." He was hurt, and said: "It's precisely to prevent goyim from entering the Jewish people that I am so strict regarding conversion." I responded: "But you should know, that this is something that you will not be able to prevent. A person who wants to be part of the Jewish people will do everything in his power to be accepted as a Jew, and if he is prevented from doing so in a halakhic manner, he will find another way of doing so: he will pretend, forge documents, pay money to change the registry – and ultimately, he and his children will succeed. Even if he himself is completely secular, it is likely that one of his children will become religious and send his grandson to study in a yeshiva. The grandson will be an excellent student, and when the time comes to find him a bride, one will be found from an excellent family… your granddaughter. If you are strict now in accepting converts, know that this is how it will be."
Prof. Tzvi Zohar teaches at the law faculty at the Bar-Ilan University
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