Svara, Queers, and the Future of Rabbinic Judaism

Svara, Queers, and the Future of Rabbinic Judaism

by Benay Lappe

I would like to begin by thanking David Berger and the other Keshet organizers for allowing me to submit a paper to be read to you in my absence. I am, regrettably, unable to be in New York today, but am grateful for the honor of having been asked to participate in this way, nevertheless. My talk is entitled: 

According to Masechet Sanhedrin [5a], there are two requirements for one who wants to exercise rabbinic authority—one must be both gamirna and savirna. Now, what do these Aramaic terms mean? Gamirna implies that one has to have amassed sufficient knowledge or learning. Basically, they gotta know their stuff. And savirna implies they have to have the ability to exercise svara. But what is this svara that is so crucial to functioning as a rabbi and to interpreting God’s will? It seems pretty straightforward: svara, the ability to be “savir,” “reasonable.” The capacity to reason. But, actually, svara is much more complicated, and, it turns out, is not only a prerequisite for those aspiring to rabbinic authority, but is probably the most significant source of Jewish law we have.

After the destruction of the Second Temple, our founding Rabbis increased the number of places to which they could turn to discover God’s will—that is, the sources of Jewish Law—from one  to five. In addition to our old standby—a verse in the Torah, which they called kra  (and which legal scholars call midrash)—they added ma’aseh (precedent), minhag (custom), takkanah (legislation) and last but not least, svara.

Menachem Elon, the most prominent Jewish legal scholar of our generation and former Justice and Deputy President of the Israeli Supreme Court, defines svara as “legal reasoning that penetrates into the essence of things and reflects a profound understanding of human nature [and involves] an appreciation of the characteristics of human beings in their social relationships, and a careful study of the real world and its manifestations.” [Elon, Jewish Law: Cases and Materials, Mathew Bender, 1999,  p. 97] This is just a fancy way of saying: what your kishkes, and your intellect, and your experience of human nature and the world around you (which should be extensive), tell you about what’s right and what’s wrong.

That a person’s svara is a legitimate place to look to figure out what God wants of you is radical enough. But wait: As we all know, laws which the Rabbis derived from kra, or biblical verses, were given the status of d’oraita—directly from Torah, transmitted directly from God to Moshe on Mount Sinai. And laws deriving from ma’aseh (precedent), minhag (custom), or takkanah (legislation) were acknowledged as being of human derivation—a creation of the Rabbis themselves—and were labeled merely d’rabbanan, a kind of “second-string” as far as laws went.

But—get this—a law that the Rabbis created by means of svara was classified as—now put your seatbelts on for this one—d’oraita. What comes from our kishkes, said the Rabbis, is really coming straight from God—from God to Moshe on Mt. Sinai to me. Svara, according the Rabbis, had the same authority as the biblical text itself—and in many instances in the Talmud, svara trumps krakishkes trump a biblical verse.

According to the late talmudic scholar Rabbi Eliezer Berkovits, alav hashalom, “A svara may be so convincing that it may compel one’s conscience to suppress the plain meaning of a biblical injunction and force upon a verse in the Bible a meaning that it can hardly bear textually. [In addition,] svara may show that in certain areas the consequences of a generally prevailing law would be unacceptable and, therefore, that those cases must be exempted from the authority of that law.” [Berkovits, The Nature and Function of Jewish Law, in Essential Essays on Judaism, by Eliezer Berkovits, edited by David Hazony, Shalem Press, Jerusalem, 2002, pg. 45]

These audacious claims, made by our Rabbis two thousand years ago, set the tone of rabbinic courage and activism that is our spiritual legacy to this day. They constitute the core principles responsible for the mechanisms that have allowed Jewish Law to become the most exalted blueprint for human dignity and world perfection in history—and the mandate to alleviate human suffering, particularly that caused by the Jewish tradition itself, in every generation.

The centrality of svara in how Jews  have done Jewish law ever since is the cornerstone of Rabbinic Judaism and the highest ideal of the Conservative Movement that proudly claims to be its rightful heir.

But svara is a human capacity its purported possessors do not always actually possess.

In fact, it is quite fitting that we come together today for this Day of Learning precisely on the day the rabbis of the Law Committee meet, and on the eve of their official decision to reopen the question of the halachic status of gay and lesbian Jews in the Conservative Movement—or, more simply put, on the eve of the Law Committee’s deliberations to determine if, in their svara, it is God’s will that I—and hundreds of thousands of queer Jews like myself—should be understood to be deserving of the status of full and equal human beings.

While many of us are hopeful that some svara closer to God’s will might finally prevail in the teshuvot passed by the Law Committee, let us also take a moment to acknowledge that the mere process itself is one which is both violent and deeply painful for every queer person whose very humanity and Jewish authenticity will be debated—like the kashrut of hard cheese—within these walls over the coming months by rabbis, some of whom still cannot claim to know a single gay or lesbian Jew.

Eleven years ago, this month, I flew here, to New York City, from Los Angeles, where I was a first-year rabbinical student at the University of Judaism. I came to witness, first-hand, the proceedings of the Law Committee that would decide my fate, the fate of hundreds of thousands of Jews like myself, and the fate of our entire Movement.

These rabbis were going to use their svara to determine God’s will. They were going to determine whether God thought I was an abomination—or not; whether God thought I was as good a Jew as my chevruta—or not; whether God thought I was as worthy a human being as the next Jew—or not. Would I be granted the same rights and privileges as my heterosexual peers? Would I have the same access to Torah? The same right to learn? The same right to teach? The same right to one day use my own svara to determine God’s will?

I sat excitedly in the auditorium as a modern-day talmud-in-action unfolded before my eyes. These were the g’dolei hador, the greats of our generation, articulating the “ellu v’ellu”—the sacred, sometimes-conflicting truths—that would all be understood as God’s will.

I brought a tape recorder with me that day, and I would like to share with you now some of what passed for svara  among the halachic scholars of our generation on the issue of homosexuality:

QUOTE: “Maybe they can change. Maybe they can get help. If we vote [that homosexuality is not toevah] we would be discouraging those who might seek help. That would be cruel.”

QUOTE: “I’m not condemning the homosexual—just his drive. The homosexual drive is a hedonistic drive!”

QUOTE: “I’ll take the advice of science as long as it doesn’t interfere with Torah.”

QUOTE: “Why does the homosexual have to come to me?! Why does he have to publicize it?!”

QUOTE: “No matter how we vote, the Jewish gay and lesbian community won’t stop being and acting Jewish. Yes, [if we vote against them] they will suffer pain and greater alienation. But [if we don’t], it will be worse for the traditionalists among us.”

QUOTE: “There are equals in this world who aren’t equal.”

These were the “anti-svara” of a  number of rabbis on the Law Committee eleven years ago. Most of those rabbis still serve on that body as poskim today.

The Law Committee will not be deciding this year whether gays and lesbians are fully human, but, rather, whether its own twenty-five members are.

The Law Committee’s ultimate task will be to determine whether svara is an attribute we will continue to require of our rabbis…

…and whether we will have the courage of our  rabbinic ancestors to poskin d’oraita  based on the true svara of our true leaders.

It is not gays and lesbians who will be on trial in the Law Committee this year. It will be Rabbinic Judaism itself.

Thank you very much.

© 2003 Rabbi Benay Lappe