Originally published in the Jewish Law Annual, vol. 8 (1989): 253-8.
Proposals on the lines suggested by Rabbi Brichto, to be acceptable to Orthodoxy, must first be shown to have halakhic validity. Granted their basic premiss that halakhah is an expression of the divine will, the Orthodox cannot and will not be prepared to lend a sympathetic ear to extra-halakhic remedies, even when they are ready to admit that something must be done for the sake of Jewish unity. The aim of the following comment is to explore the possibility of realizing the Brichto proposals within the halakhic framework.
On conversion the locus classicus is Babylonian Talmud, Yevamot 47a-b, in which a baraita is quoted:
‘If at the present time (i.e. after the destruction of the Temple) a person comes along to be accepted as a proselyte, he is to be addressed as follows: What is it that has made you decide to become a proselyte? Do you not know that Israel at the present time are persecuted and oppressed, despised, harassed and overcome by afflictions? If he replies: I know it full well but am still unworthy, he is accepted without more ado (miyad), and is informed of some of the minor and some of the major precepts. He is not, however, to be overmuch dissuaded. If he accepts (i.e. to keep the precepts now that he has been told some of them) he is circumcised without more ado (miyad), and is informed of some of the minor and some of the major precepts. As soon as he is healed, he is immersed [in the mikveh] without more ado (miyad), while two scholars stand by his side and inform him [again] of some of the minor and some of the major precepts. When he emerges from the mikveh he has become an Israelite in every respect.’
On the baraita the Talmud comments that the reason he is circumcised without more ado is because the performance of a mitsvah must not be delayed, i.e. once he has accepted no further delay in his becoming a full Jew must be tolerated.
Although the Talmud frowns on accepting, in the first instance, proselytes whose motives are for marriage (Yev. 24b and 109b) it is left to the discretion of the court whether or not to accept them (Tosafot on the two passages) and this is the current practice where there is evidence of a sincere desire to embrace Judaism even though the original motive is for marriage. Maimonides (Yad, ‘Isurei Vi’ah’ 14: 2) adds, following his emphasis on the dogmas of Judaism (Commentary on the Mishnah, Sanh. 10: 1), that the candidate is to be informed of the basic principles of the Jewish religion, namely, the unity of God and the prohibition of idolatry. In another passage (Bekhorot 30b) it is stated that if the would-be proselyte observes that he is prepared to accept the Torah with the exception of a single law, the court does not accept him. However, there is no suggestion that the court must ask him whether he has any reservations, nor is there any suggestion that if he had been accepted, notwithstanding, the conversion is invalid.
The Shulhan Arukh, ‘Yoreh De’ah’ 268 records this procedure but, significantly enough, omits the whole question of reservations.  To be noted for our purpose is the reference to the candidate being informed of some of the minor and the major precepts. In none of the halakhic sources is there any suggestion that he has to undergo a severe, prior course in Judaism. Not only does the Talmud state that his entrance into Judaism must not be delayed but there are talmudic sources which positively forbid a gentile from studying the Torah (Hagigah 13a; Sanhedrin 59a; and see the penultimate Tosafot onBava Kama 38a). The current practice of some Orthodox batei din to demand a prior, lengthy course of instruction not only finds no support in the sources but, on a plain reading of them, is positively illegal.
Writing from the Conservative point of view, Isaac Klein admits this:  ‘If the candidate persists after these discussions, we no longer follow the talmudic suggestion to acquaint him with some of the laws and then proceed immediately to the conversion ritual. Instead, it has become customary to require a period of training. There is no prescription for the length of the period and practices vary.’ Reform Judaism sets great store on such prior training and, surprising though this is, it would seem that those Orthodox batei din who have introduced a prior period of training have been influenced by Reform!
A responsum by Rabbi Malkiel Zevi Tannenbaum of Lomzha (1847-1910) should here be mentioned. This responsum is found in the Lomzha Rav’s collection Divrei Malkiel,  and is addressed to the Rev. I. Domnitz of Abertillery(!). A Jewish man was married in civil law to a non-Jewish woman who has given birth to a son, whom they wish to have circumcised and converted to Judaism. The woman herself wishes to be converted to Judaism. She has begun to keep the dietary laws and she attends synagogue on Rosh Hashanah and Yom Kippur. Two questions were put to Rabbi Tannenbaum: is it permitted to have the infant circumcised, and may the mother learn Hebrew and the tenets of the Jewish religion? The rabbi replies that the infant should be circumcised since the Talmud (Ketubot 11a) rules—and the ruling is recorded in the Shulhan Arukh, Yoreh De’ah’ 268: 7—that the court can arrange for a minor to be converted. As for the question of teaching the mother Hebrew and the tenets of the Jewish religion, there is some doubt about the permissibility of this, says Rabbi Tannenbaum, and, in any event, he strongly advises that she should be converted forthwith and she can study Hebrew and the tenets of Judaism after her conversion. This is far better on other grounds as well since it will save the husband from the sin of living with a non-Jewish woman. ‘It may be that to learn Hebrew does not fall under the heading of Torah study but it is better that she study everything after her conversion, especially in the case under consideration, where it is necessary to speed up the procedures in order to save the husband from sin.’
It follows from all this that an Orthodox beit din would not be stepping beyond the bounds of the halakhah if they accepted candidates presented to them by Reform and Liberal rabbis without actually asking the would-be proselytes if they are prepared to accept the observance of all the mitsvot as understood by Orthodoxy. Nor are they required by halakhah to demand that the candidates undergo a prior training in Orthodox practices. To satisfy the requirements of the halakhah what they have to do is to see to it that the conversions procedures—circumcision and immersion for a male, immersion for a female—are carried out properly. This suggestion is in no way revolutionary and, in fact, until fairly recently, was the normal procedure in Anglo-Jewry and is still the procedure in some other Jewish communities.
On the question of the get, the Brichto proposal is that where both Progressive Jewish partners are agreeable to the get procedures this should be encouraged but ‘ingenuity and creativeness’ would be required when a get cannot be obtained; for instance, the original marriage can be nullified.
The same would apply to the question of mamzerut. But the various remedies to the problem of mamzerut (this, not the get itself, is the real problem if we are thinking of Jewish unity) have long been advanced and rejected by the Orthodox rabbis.  In any event, it is pointless to suggest that the Orthodox should be ‘creative’ here since, at the present, they would see such creativeness as stepping beyond the boundaries of the halakhah. What, then, is to be done? The answer is that no attempt should be made by the Orthodox beit din to uncover instances where the taint of mamzerut is present. That themamzer will automatically become pure in the messianic age is the subject of a debate between the second-century tana’im, R. Meir and R. Jose, R. Meir holding that there is no purification for the mamzer in that age; R. Jose that there is.  The debate is referred to in both the Palestinian Talmud (Kidushin 3: 13; 64d) and the Babylonian (Kidushin 72b). In the former, R. Huna says in the name of R. Joseph that the ruling is not in accordance with the view of R. Jose but in the latter R. Judah says in the name of Samuel that the ruling is in accordance with R. Jose and mamzerim will become pure in the messianic age. On the face of it the debate is of no practical consequences so what is the point of speaking of a ‘ruling’? The mediaeval authorities (see Tosafot onZevahim 45a) hold that there are practical consequences for the present. If the mamzerim will become pure in the messianic age, there is no need to keep away from families whose genealogies are doubtful. Since the rulings of the Babylonian Talmud are generally preferred by the codifiers, Isserles (‘Even Ha’ezer’ 2: 15) states:
‘If one who is unfit has become mixed in a particular family, then once it has become mixed it has become mixed and who knows of the disqualification is not permitted to disclose it and must leave well alone since all families in which there has been any admixture will become pure in the future.’
Certainly any attempts to discover whether a particular child is a mamzer, e.g. by investigating whether the mother had been previously married and had not received a get from her former husband, is not warranted by the halakhic tradition. Here again, until fairly recently, the batei din in Anglo-Jewry never engaged in such investigations (and they are unknown in a number of other communities to this day) so that the mamzer problem hardly existed. The majority of Jewish marriages are not of women who had been previously married and then remarried without receiving a get from the former husband, and the probability principle is accepted in Jewish law. The problem is caused by the inhuman and untraditional ‘inquisition’ and this can and should be given up without any violence being done to halakhic norms. The scenario, to be halakhically feasible, would be for candidates for conversion from Reform and Liberal communities to present themselves to the Orthodox beit din for the conversion procedures to be carried out in accordance with the din. The scheme would not work if the beit din demanded a prior, lengthy period of instruction in the full Orthodox observances. But, as we have seen, the halakhah does not require this, and, in a pluralistic society, it is unreasonable to expect the Progressives to commit spiritual suicide.
Compromise is called for on both sides but, as we have seen, no real compromise of their loyalty to the halakhah would be demanded of the Orthodox. If, furthermore, the Orthodox beit din were to give up the very unfortunate and halakhically dubious attempts at uncovering the taint of mamzerut, there would still be a problem where a mamzer is known for certain to be such (and here no remedy would be forthcoming at the present) but those cases would be few and far between and in most instances there would be no halakhic problem if the Orthodox and Reform and Liberal communities wished to marry into one another.
The Brichto proposals, if modified somewhat on the lines we have suggested, are not at all utopian or ‘laughable’. That this is so can be seen from the fact that similar procedures existed years ago in Anglo-Jewry as well as in some pre-war communities in Germany, where the Orthodox and the Progressives co-operated to the benefit of all. In other words, the appeal to the Orthodox in this country should not be: put your house in order and then we can talk, but: your house is already in order; it is a pity that you have left it. Come back home and then we can talk.
- A good summary of the conversion procedures is to be found in Entsiklopediyah Talmudit, vol. vi, s.v. gerut, pp. 426-49, and in J. M. Epstein’s Arukh Hashulhan, ‘Yoreh De’ah’, 268 and 269.
- A Guide to Jewish Religious Practice (New York: Jewish Theological Seminary of America, 1979), 443, emphases supplied.
- Jerusalem: Mosad Harav Kook, 1970, vol. vi, no. 19, pp. 39-40.
- See the documentation in my A Tree of Life (Oxford: Oxford University Press, 1984), Appendix B: ‘The Problem of the Mamzer’, at 267-75.
- Tosefta, Kidushin 5: 4, ed. Zuckermandel, p. 342.