Friday, March 13, 2020

Jewish Legal Matters in the Age of Coronavirus (Covid-19)

We are all learning what it means to live in communities in which we need to exercise social distancing and enhance our typical personal hygiene regimen to safeguard against the Coronavirus (Covid-19). Hillel Day School, the Jewish elementary and middle school I attended in the 1980s and the school two of my children currently attend (they will graduate in June), has suspended classes amid the positive Covid-19 test of a member of the faculty. In the Jewish community, the closing of synagogues has raised halakhic (Jewish legal) questions about how to constitute a minyan (quorum of ten individuals) so that those in mourning and observing a yahrzeit can recite the Mourner's Kaddish.

Thankfully, I just concluded my year of saying Kaddish for my beloved father, Gary D. Miller of blessed memory, so I don't have a personal need to recite Kaddish right now. This week, however, I have been asked by many people about the ability to have a "virtual minyan" (using video streaming services) because I have written on the subject in the past and helped my Talmud teacher, Rabbi Avram Israel Reisner, do research on the issue when he was drafting his teshuvah (rabbinic responsum) on the Virtual Minyan in 1998 and 1999. I think that if there has ever been a time when it is acceptable to offer virtual minyanim, that time is now. The technology has advanced so much since Rabbi Reisner first began to look into the matter back in the late 1990s so that many of his initial concerns about lagging video feeds and buffering internet connections are no longer concerns. Further, with so many synagogues shuttered until at least after Passover and people being self-quarantined, it will bring much comfort to so many in the community.

I learned so much from Rabbi Reisner in my first year of rabbinical school and his interest in the halakhic feasibility of the Virtual Minyan on the Internet helped me to begin my own quest to look deeper into the intersection of Technology and Jewish law. Another teacher who taught me so much that first year of rabbinical school at the Jewish Theological Seminary was Rabbi Robbie Harris. Rabbi Harris has written an important piece on how the Jewish community should proceed during this time when we're dealing with the implications of the Coronavirus (Covid-19). I think it's worthwhile to share his thoughts in their entirety below:

Pikuach Nefesh, Social Distancing and a Rabbi’s Case for the Need to Protect Life
Rabbi Robert Harris

A caveat before I begin:  I have hesitated from responding to the Coronavirus since news of it first broke, since I am neither a scientist nor a public health official, but now…  as a rabbi, a faculty member of the Jewish Theological Seminary and as a former member both of the Rabbinical Assembly’s Committee on Jewish Law and Standards and of the Israel Rabbinical Assembly Law Committee, I want to say clearly and unequivocally:  we must take drastic action to enforce social distancing, in the absence of clear governmental directives. Now is not the time to debate, for example, the fine points of use of electricity on Shabbat, or other, now trivial, matters that typically divide us one from another; we are talking about pikuach nefesh, the saving of human life.

I share these sentiments — not quite a teshuvah, for there is no time to calmly research one, but more than just an op-ed — with a great amount of respect for the various ways in which people of all faiths are struggling to respond to the virus and its implications for our individual, family and communal lives.  But at the same time, I want to shout from the rooftops:  rabbis and clergy people of all faith:  E-services, everyone!!!  Social distancing!  Virtual congregations!  All public religious worship should be set aside until the crisis passes.  If the NBA is canceling basketball games, out of its concern for the sanctity of human life, then how much the more so should we follow suit for the purpose of gathering in worship.

For those of you unfamiliar with the rabbinic principle of pikuach nefesh, let me describe it in the most general of terms:  the Torah states (in a context that has little meaning for the subsequent talmudic discussion or my purposes here): “you shall keep My laws and My rules, by the pursuit of which humankind shall live: I am the LORD (Leviticus 18:5).  A midrash, or rabbinic interpretation, teaches:  “to live by them — and not die by them!” (Babylonian Talmud, Treatise Yoma 85b).  The Sages considered many applications of the principle they found in verses like these; I will share just one of them here.  It is from the same section in the Babylonian Talmud, Yoma 84b:

What are the circumstances in which uncertainty would arise as to whether or not a person’s life will be in danger in the future? They are a case where doctors assess that an ill person needs a certain treatment for eight days, and the first day of his illness is Shabbat. Lest you say: He should wait until evening and begin his treatment after Shabbat so they will not need to desecrate two Shabbatot for his sake, therefore it teaches us that one must immediately desecrate Shabbat for his sake. This is the halacha, despite the fact that an additional Shabbat will be desecrated as a result, because there is uncertainty about whether his life is in danger.

Thus, the Rabbis have ruled in such cases of desecration of Shabbat — a subject which, as we all know, they took to be central to their understanding and practice of Judaism — the principle of pikuach nefesh, the actual or even the potential saving of human life, should take precedence without any hesitation.

Moreover, we are not speaking of a ritual observance, a mitzvah bein adam la-Makom (“a commandment between humankind and God”), but rather ethical and social commandments of the highest order, that guide our conduct with our fellow human beings, mitzvot bein adam ve-havero (“commandments among humankind”).  And particularly in light of the risk of contagion with a potentially deadly (but certainly serious, in any case) disease, I do feel that every precaution is necessary and mandatory, until we really get this under control.  Right now we are merely challenged and inconvenienced, but the potential risk is far greater, as I’m sure you are aware.

In light of the threat that the virus poses, and the rabbinic values clearly at play as the preceding passage indicates, I find the news stunning that we observant Jews would consider gathering in public assembly for prayer at this time and particularly in my place of residence:  Westchester County is now an epicenter of contamination and, frankly, Jewish Westchester is at the very center of that.  The Governor has now called out the National Guard to help contain the outbreak in New Rochelle, all of the Jewish schools and yeshivot (in addition to Scarsdale Public Schools, and many private schools) are shuttered.  And in New York City, Columbia University and the Jewish Theological Seminary are now closed for the foreseeable future, shifting all of their respective resources to online learning and community engagement.

And to be perfectly frank, as of today, the Jewish community has received the support — emotional and social, as well as medical — of our State and County governments, as well as our neighbors of other faiths (some of whom are risking their own health to deliver food and other supplies to quarantined Jewish families).  How long do you think that support will last once they get the sense that the Jewish community itself is finding ways to “get around” the restrictions?

The fact that a synagogue building here or there has been disinfected is well and good, but if only one person who, even unwittingly (b’shogeg) and not, God forbid, callously, has been exposed and then passes on the contagion, then all the disinfectant in the world will not help contain the contagion.  Then we will surely see that all of the inconveniences of quarantines and other restrictions pale in comparison to dealing with an even more serious outbreak of disease and suffering.

Jewish law, Halacha is clear: pikuch nefesh doheh et ha-kol, “the saving of life outweighs every other principle.”  And as the Sages have taught countless times in the Talmud and classical literature of Codes and Responsa, this is an expansive principle, not restricted only to actual moments of saving one individual’s life.  This is a time, in fact, for what the Sages have termed humrot, “legal stringencies,” as we typically do in countless ritual ways but in this case we should practice for a serious, extremely serious and potentially dire circumstance, one that threatens both Jews and Gentiles and, if set loose even further, is a mash-hit, a destructive power that can, God forbid, destroy everything that every decent person holds dear.

Therefore, I would advocate people of all faiths to find ways to practice our respective religious beliefs for the immediate future… in the privacy of our own homes, and to avoid public assembly until the crisis passes.  For Jews, I would instruct us to continue to daven, pray, three times a day and fulfill all mitzvot and religious obligations… in our homes, b’yahid, individually, until our communal leaders and government indicate that our gatherings do not endanger public health.  And we should do so voluntarily, and gladly, b’simhat mitzvah, “with the joy of fulfilling God’s commandments,” knowing that our humra, the stringent interpretation that I am advocating here, enhances the quality both of our lives and those of our neighbors.  Doing this happily and willingly and immediately — that would truly be a kiddush Hashem, a sanctification of God’s Holy Name, more than reciting the additional prayers that may not be recited by individuals.  I would close the nursery schools, Hebrew schools, and cancel all public religious services and every other occasion of public gathering. I would not permit the holding shiva minyanim (the “week-long” household prayer services by mourners). I would hold all classes online and live stream every and all religious services. I would direct our communities to limit their public activities to delivering food parcels, caring for the sick, burying the dead as necessary, and other ways of sanctifying God’s name in public — but only those kinds of practices, and only doing so in conjunction with the directives of public health officials.

And that is why I coached my thoughts as a humrah, an additional restriction beyond the minimal requirements of law and practice.  Since the potential of threat and contagion is so great, I believe that it requires us to be extra vigilant and not minimally so.  And I do understand the hardship my “not-quite a teshuvahteshuvah, engenders. This is my “response” to the crisis, and I urge religious leaders of all faiths and denominations to echo these sentiments and find ways to express them in your own religious language.

Be bold, Rabbis! Go forth, Clergy of all faiths. As God once told a hesitant Moses (Exodus 17:5), avor lifneh ha-am, “Pass before the people!”  The great medieval commentator, Rashi, glossed, “And let us just see if they stone you!”  I urge the rabbinic leadership of all movements in Judaism to issue a temporary decree, or takkanah, that, for the sake of life, permits the live streaming of all religious services.  And I urge religious leaders of all other faiths to find language and means that are appropriate to your own beliefs and observances to sanctify God’s Holy Name and not endanger human life.  Do not hesitate, with such a threat facing our communities, this is not a time for pondering and reflecting and discussing; it is what the Sages called a she’at de-haq, “an urgent circumstance,” one that brooks no other direction and one that requires immediate action.  That is what being a leader in God’s name requires.

In any case, I wish us all, our families and our neighbors, good health, and hizzuk, strength, to deal with all of the challenges that the quarantines and restrictions present.

Robert A. Harris is Professor of Bible at The Jewish Theological Seminary, teaching courses in biblical literature and commentary, particularly medieval Jewish biblical exegesis, and is Chair of the Bible Department.  Dr. Harris has written several books, and has published many studies in the history of medieval Biblical exegesis in both American and Israeli journals. He also lectures on biblical narrative and Jewish liturgy in congregations and adult education institutes around the country.  Dr. Harris has lectured as a visiting professor at universities in Europe and Israel, and has served as a rabbi in several congregations in the United States and Israel.

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