The Tucker Teshuvah

or Theology and CJLS Politics

In my last post on the CJLS teshuvot on homosexuality, I tried to show that the Jewish legal tradition, rigidly conceived, does not reflect a hierarchy of sexual values with which many contemporary committed Jews can identify.

Fleurdelis28 had an excellent response, but Blogger was being a meanie that day, so she sent it to me by e-mail. Here's a snippet:

[A]ll those nice values we want to call Jewish may be much more evident in the narrative of the Bible than in its laws themselves. In spite of a radically different social context, there seem to be a lot of couples who do substantially love and respect each other, and when they aren't honest with each other, things don't go so well. . . .Avraham's and Yaakov's situations illustrate nicely why polygamy, though acceptable, is not such a great arrangement emotionally (even when it was your wife's idea in the first place). . . .Whatever you think is going on in the Song of Songs, it's clearly not about the relationship you'd expect from the worldview of the laws stated in the Torah. I don't have the time at the moment to go poring over the rest of the Tanach -- granted, a rather heterogenous narrative -- but I think by and large things go better for the sort of couples that do behave in accordance with those values you cite.

Yes, the Bible is quite heterogenous, but fleurdelis28 makes an important point: Biblical narratives often temper, or even undermine, the apparent thrust of biblical legislation. This is true of the rabbinic tradition as well, which consists not only of legal texts, but also of aggadah (narrative). And in fact, this very issue -- the often fraught relationship between Jewish law and Jewish narrative, including the narrative that modern Jews continue to live and create -- is one of the centerpieces of Gordon Tucker's argument for the normalization of Jewish gays and lesbians.

Fundamental to Tucker's teshuvah is the premise that the Torah is not the infallible word of God. He writes:

The deeper consequence of our theology, is that the Torah (and a foriori subsequent expressions of religious law) is not a record of commanding utterances from God, but rather a record of the religious quests of a people, and of their understanding of how God's will commands them. The long-standing -- and understandable -- tendency to divide up religious literature into halakhah (law) and aggadah (narrative) has thus always been a mistake. The law is given cogency and support by the ongoing story of the community that seeks to live by the law. . . . The ongoing, developing religious life of a community includes not only the work of its legalists, but also its experiences, its intuitions, and the ways in which stories move it. This ongoing religious life must therefore have a role in the development of its norms, else the legal obligations of the community will become dangerously detached from its theological commitments. (P. 19; emphasis in original)

My sentiments are with Rabbi Tucker, but I wonder whether the "enhanced" Halakhic* system that he advocates can practically be put into effect. Can we maintain a commitment to halakhic precedent on a daily basis while making exceptions when our consciences demand that we do so? Even if this is possible on an individual basis, is it really possible on a communal basis? And if so, what is to be the role of the CJLS in this process?

This brings me to an interesting point regarding CJLS politics. While Gordon Tucker is not the first to advocate this sort of reimagined halakhic system, he is, as far as I know, the first to do so in the context of the CJLS. Apparently uncertain what to do with his unconventional teshuvah, the members of the CJLS labeled it a takkanah (which I usually translate "rabbinic injunction," but perhaps "amendment" is more appropriate in this context). According to the CJLS's recently relaxed rules regarding takkanot, a majority of votes (13) is required in order for a takkanah to pass, as opposed to the six votes required for an ordinary teshuvah. (From what I've observed, there are normally a large number of abstentions.) The Tucker paper received seven votes in favor, which means that it failed to earn CJLS approval only because of its takkanah status. Unsurprisingly, Rabbi Tucker argued against the paper being considered a takkanah, maintaining that historically, the term was reserved for legal innovations that derived their authority from that of a particular Rabbi. This teshuvah, in contrast, "does not seek any extraordinary authority [nor does it] seek to create an unchallengeable innovation" (p. 3). Notwithstanding the semantic point, I think that the members of the CJLS were correct in recognizing that the teshuvah does demand something extraordinary, namely, to alter the parameters of halakhic discourse in such a way as to change the very role of the CJLS as a judicial body (even if it does operate in a merely advisory capacity). In effect, this paper is neither a traditional teshuvah nor a takkanah, but a recommendation for changing the entire system by which teshuvot are written. It hardly seems self-evident to me that such a document should require a mere six votes to pass.

That said, the approach to halakhah advocated in this essay is closer to my own ideas about Judaism than the more traditional approach of Joel Roth,** and I daresay that the same is true of a large proportion of Conservative rabbis, not to mention laypeople. Perhaps it should be given more of a voice in the CJLS.

* Tucker recommends using a capital "H" when referring to this more expansive type of Halakhah (p. 20). I am finding this a bit difficult to get used to, since a Reconstructionist rabbi I admire refers to a similar phenomenon as "halakhah with a small 'h'."

**See pp. 28-31 of the Roth Teshuvah for a critique of Tucker's approach.