December 16, 2022|כ"ב כסלו ה' אלפים תשפ"ג No, Ben, the OU is Not Nervous and YU is Not Clumsy By Rabbi Jonathan Muskat

Ben Shapiro recently wrote an article asserting that Modern Orthodoxy is in crisis because its leadership is not standing up to Torah values in its response to the challenge presented by the LGBTQ movement. In the article, he asserts correctly that the Torah’s worldview is most valuable precisely where there is controversy. However, he mistakenly argues that both the leadership of the Orthodox Union and Yeshiva University have failed in their moral missions to preserve Torah values in the OU’s response to the Respect for Marriage Act and in YU’s acceptance of a club for LGBTQ students. He claims with certainty that the nuanced positions of both of these organizations reflect weakness of our rabbinic leadership who capitulated to secular morality. I, for one, believe that these nuanced positions actually reflect the strength of our Modern Orthodox community.

The key to a strong Modern Orthodox community is fully engaging in the outside world in a nuanced manner through the prism of Torah values. The question, of course, is how we determine Torah values when there is no clear halachic answer to a question or where there are multiple seemingly legitimate ways of analyzing a particular question. When it comes to the Torah, we must observe both the letter of the law and the spirit of the law. The spirit of the law is famously reflected in three passages by the Ramban. He argues that the Biblical phrase, “kedoshim tihyu,” (Vayikra 19:2) or “you should be holy” requires us not to overindulge in that which is permitted to us. He argues that the Biblical phrase, “v’asita ha-yashar v’ha-tov” (Devarim 6:18) or “and you should do what is right and good” requires us to go beyond the letter of the law to do that which is correct and good. He argues that the Biblical requirement of “Shabbaton” (Vayikra 23:24) in reference to our holidays mandates that we desist from activities that are not conducive to the spirit of the day. But how do we know what the spirit of the law is in any given case? What is the proper way to intuit Torah values when there is no clear guidance as to what those values are?

Rav Mayer Twersky once wrote that, “Mesora encompasses not only analytic novella, abstract theories, halakhic formulae and logical concepts… but also ontological patterns, emotions and reactions, a certain existential rhythm and experiential continuity.” (Halakhic Values and Halakhic Decisions, Tradition 32:3, Spring 1998). Mesora is key to answering both letter of the law and spirit of the law questions. We approach a posek of first rank to address both halachic questions and questions that reflect our values and our belief systems. Very often when Jewish tradition is faced with a controversial issue, there may be multiple seemingly legitimate ways to analyze the issue. We must confront and struggle with the issue and we must turn to our rabbinic leaders to help us prioritize which values are most important in any given issue.

In applying this analysis to the issues at hand, the orthodox response to the Respect for Marriage Act is a tricky one. What is the message that we as an orthodox community want to convey? Where should we place our efforts in a country that overwhelmingly supports the idea of same-sex marriage? Do we simply focus our efforts on protecting our own religious liberties with regard to this issue? If you read the OU’s letter in its entirety, it is very clear that the OU expressly states that the Torah defines marriage as a relationship between a man and a woman and that it cannot endorse the main purpose of the legislation. Additionally, the clear purpose of the letter was to push for legislation to protect the rights of religious institutions who do not wish to provide services for the celebration of same-sex marriages. Yes, the OU letter did state “your recognition that religious liberty interests must be  explicitly and substantively addressed in the context of this kind of legislation is  itself an essential act in a nation devoted to the principles of diversity, tolerance and  religious freedom,” but reading this line in the context of the entire letter doesn’t mean that, as Ben Shapiro asserted, “same-sex marriage is rooted only in unreasoning religious bigotry.” The OU was suggesting that allowing religious institutions not to service same-sex marriages was in line with American values. The OU’s position was a nuanced position and it reflected a pragmatic decision presumably guided by responsible rabbinic leaders who have the authority to make spirit of the law decisions for our community.  That is not “nervous orthodoxy,” as Ben Shapiro has claimed, but it is pragmatic orthodoxy backed by Torah leadership.

Additionally, the decision of YU’s leadership to form a club for LGBTQ students within certain parameters also reflects our time-honored tradition of how to decide spirit of the law issues. Our rabbinic leadership has struggled with how to balance our halachic values of kavod habriyot concerns of supporting every Jew while not endorsing forbidden behavior. How do we create activities that will contribute to the mental health and well-being of members of the LGBTQ community in a manner that would not cloud the message that LGBTQ relationships are in fact halachically problematic? How do we thread the needle? How do we decide this spirit of the law issue? Ben Shapiro is certainly entitled to his opinion. The Pride Alliance student group is certainly entitled to its opinion. But I would turn to our Roshei Yeshiva to try to thread the needle and yes, I would push the Roshei Yeshiva hard in an effort to try to maximize both values. I understand that sometimes responses may be a little clumsy or clunky because of the delicate and sensitive nature of the issue and the lack of trust and that’s okay.

Ben Shapiro believes that the OU leadership falls into the category of nervous orthodoxy and YU leadership falls into the category of clumsy orthodoxy. What he calls nervous orthodoxy and clumsy orthodoxy is actually a built-in mechanism that our Jewish tradition has used to confront controversial spirit of the law issues for thousands of years. It is called mesora. It requires us to look to our rabbinic leaders to guide us. The real question that we need to ask ourselves is to whom should the orthodox establishment turn to guide us when we face these and other challenging issues. Do we turn to Ben Shapiro or do we turn to the rabbinic leaders that the OU and YU leadership turned to for guidance? Do we use a system whereby anyone with some amount of Jewish education and common sense has the right to decide controversial issues for the orthodox Jewish community or do we use a system that has worked for us for thousands of years, a system of mesora and of turning to our poskim for both letter of the law and spirit of the law contemporary questions as the Orthodox Union and Yeshiva University seem to have done? The answer seems pretty clear to me.