Bagels and lox are among the most famous elements of American Jewish culture. According to Leo Rosten, author of The Joys of Yiddish, the bagel dates back to the early 17th century in Poland, the nation from which many American Jews trace their lineage. And the word lox is derived from the Yiddish word for salmon. Unquestionably, consuming special foodstuffs—challah, matzo balls, knishes, latkes, kasha varnishkes, kishke—is one way by which many American Jews seek to confirm their Jewish identity. But it’s not the only food group we do this with. There was a wonderful moment during Elena Kagan’s testimony before the Senate Judiciary Committee upon her nomination to the Supreme Court. Senator Lindsey Graham was questioning her about detention and prisoner-rights issues and interrupted her brusquely at one point to ask where she was when the Christmas Day bomber tried to bring down a plane over Detroit in 2009. Without missing a beat, Kagan responded: “You know, like all Jews, I was probably at a Chinese restaurant.”

Those who consider food a key connection to the past and peoplehood are likely to be “cultural” Jews, as opposed to “religious” Jews. Indeed, according to a Pew Research Center survey from 2013, 62 percent of respondents said that being Jewish is mostly a matter of ancestry and culture. Moreover, 22 percent of American Jews (and 32 percent of those born after 1980) describe themselves as having no religion at all and consider themselves Jewish solely on the basis of ancestry, ethnicity, or culture. Only 15 percent indicated that their Jewishness was defined primarily by the practice of the Jewish religion. And two-thirds thought that one doesn’t have to believe in God to be Jewish. As I observed last year in an essay in Commentary1, even many traditionally observant self-identifying Orthodox Jews are often driven in their daily practices more by cultural and social impulses than by theological dictates.

The question of what it means to be a “cultural” Jew lies at the heart of Roberta Rosenthal Kwall’s The Myth of Cultural Judaism. Kwall, a professor at DePaul University College of Law, makes two arguments: first, that “Jewish culture produces Jewish law,” and second, that “cultural Judaism absent any connection to Jewish law is an impossibility.”

For those fundamentalist Jews who view Jewish law (halacha) as the unquestioned and delivered word of God, Kwall’s cultural analysis of Jewish law might seem blasphemous. The notion that culture and history can influence changes in halacha is a very slippery and threatening slope. Still, Kwall marshals a great deal of evidence to support her first argument. She cites a story in the Mishna (the first part of the Talmud) that demonstrates Hellenistic influences on early Jewish law. Recognizing that his community needed a place to bathe, Rabbi Gamliel, the leader of Palestinian Jewry in the second century c.e., authorized bathing in the Bath of Aphrodite, even though it contained a statue of the Greek goddess and was therefore spiritually impure.

Kwall also provides post-Talmudic evidence of an evolving halacha very much in tune with the economic and political realities facing the Jews. She notes that whereas the Talmud contains a clear prohibition against both consuming and trading in wines that were prepared by Gentiles, the rabbis in the Middle Ages modified this law to permit Jews to trade in such wine, because “the use of wine for business was an economic necessity.” She also shows that culture has not always resulted in the loosening of halachic prescriptions. Sometimes culture moves halacha in the other direction. Regarding kashrut, for example, Kwall demonstrates that over the past millennium, rabbis have adopted continually increasing stringencies (such as the waiting period between eating meat and dairy, and the requirement of having separate sinks and dish racks) that are neither found in the Torah nor the Talmud, and yet have become part of the mainstream fabric of halacha today.

Leaving her readers with no doubt that she endorses a culturally sensitive halachic tradition, Kwall demonstrates in a chapter on homosexuality how the outer boundaries of halacha are being explored and tested in response to the zeitgeist. As Kwall notes, there are only two explicit statements about male homosexual conduct in the Bible, both in Leviticus and both essentially unequivocal. In Chapter 18, the practice is described as an “abhorrence,” and in Chapter 20, the Bible mandates capital punishment for the sin of male homosexuality. To be sure, the Orthodox rabbinate in America, unlike the Conservative and Reform movements, have made clear that homosexual conduct is not acceptable within halacha. Yet in an acknowledgment to the growing number of gay men being raised in Orthodox Jewish homes and attending Jewish schools and synagogues, more than 200 Modern Orthodox rabbis and educators have signed a Statement of Principles explicitly stating that “Jews with homosexual orientations and same-sex attractions should be welcomed as full members of the synagogue and school community” and “be eligible for ritual synagogue honors.”

And she points out that some Modern Orthodox rabbis have gone even further along the culturally influenced continuum. When Rabbi Steven Greenberg, who holds an Orthodox ordination from Yeshiva University, officiated at what he described as a “halachically meaningful” same-sex wedding ceremony, he was roundly criticized within the Orthodox Jewish community, even its more liberal elements. Demonstrating just how culturally sensitive halacha may actually be, however, Rabbi Asher Lopatin, who heads the seminary of the Modern Orthodox Yeshivat Chovevei Torah, responded to Greenberg’s participation by criticizing him for not plunging “into the great pool of our tradition, certain that he will be received by water rather than a dry cement bottom.”

At first glance, one might think that the one segment of American (and world) Jewry that has not been influenced by culture is the ultra-Orthodox Haredi community. It is true, of course, that this community has resisted the trend toward modernization that has changed other strands of Judaism. But culture has altered the norms of the ultra-Orthodox in a very different manner. It is well recognized that over the past several decades many ultra-Orthodox communities have accepted stringent halachic positions or positions that go well beyond halachic dictates, called chumrot. And some rabbis have issued decrees ranging from prohibiting the use of smart phones to requiring strict separation of men and women in stores and buses. It easy to understand why a community so committed to insularity would take on restrictions that respond to the threat that exposure to modern cultural attitudes poses. Technology means that no one lives in a shtetl today, so intensifying observances and restrictions is a way to reduce the risk that culture will erode the identity of the community. This is a move away from culture, not toward it, but it is a response to culture that is shaping the halachic lives of the Haredim nonetheless.

But if Kwall is accurate in her conclusion that Jewish law depends on Jewish culture, it does not necessarily follow that the opposite is true—that cultural Jews are “inevitably molded and shaped by the Jewish tradition, which includes Jewish law.” To support her premise, Kwall observes that “a strong concern for social justice is deeply embedded in the text of the Torah.” And she cites, as an example of the halachic connection to the concept of tikkun olam (“repairing the world”), the biblical injunction to preserve portions of their harvest and vineyards for strangers, orphans, and widows. But there is nothing uniquely Jewish about wanting to do good deeds and good works, or pursue justice and be charitable. Baptists and Methodists and secular humanists and all other religious groups pursue these same ideals. And while it is nice that Jews are able to point to a biblical text that endorses such behavior, there is no basis for maintaining that the overwhelming majority of Jews, who do not define their Jewish identity primarily by the practice of religion, are committed to social justice because of Jewish law. They simply want to live ethical lives.

Kwall argues that no one “can adhere to Judaism on just a cultural level,” because, “in reality, those who claim to be ‘cultural’ Jews still are embracing a degree of Jewish law and tradition regardless of whether they are aware of this reality or acknowledge it.” But that contention can be accepted only if we really lower the bar. A majority of Jews may host or attend a Passover seder and celebrate Chanukah, and both of those practices have halachic origins. But when many Jewish homes that celebrate Hanukah also have Christmas trees, it is hard to claim that Jewish law is really playing a role in these genuinely cultural expressions of Judaism. While the lighting of candles does have a Talmudic origin, there is nothing halachic about eating latkes or spinning dreidels. In this respect, “cultural” Jews are actually not dissimilar from the many “cultural” Christians, who celebrate Christmas for solely social or national reasons—a fact the Supreme Court took note of in its allowance of a Nativity scene beside a plastic reindeer, a Santa Claus house, and a Christmas-tree crèche in a Rhode Island town square because, as the Court observed, “the evident purpose of including the crèche in the large display was not promotion of the religious content of the crèche but celebration of the public holiday through its traditional symbols.”

The fact is that there are many “cultural” Jews (indeed, the vast majority of American Jews) who express their Judaism by engaging in activities that have no basis at all in halacha. They use Yiddish slang; they buy Israel Bonds; they take a Birthright trip to Israel; or they celebrate Christmas Eve by ordering in Chinese food or going out to a movie. For most of these Jews, even when they engage in Jewish activities that are rooted in halacha (like observing Yom Kippur), their acts are not in any way connected to the fulfillment of Jewish law but rather taken simply to be part of a community. (How many Yom Kippur break fasts start before the holiday actually ends or are catered with non-kosher fare?)

Kwall’s claim that even Jews entirely ignorant of their own traditions and uneducated in the laws that have governed their people for millennia are somehow unconsciously motivated by them is simply wishful thinking. And therein lies the serious question that is beyond the scope of Kwall’s book—how to engage “cultural” Jews, who are clearly important to the future of American Jewry, so that they will care enough about their culture to give their children a serious Jewish education. Alas, a bagel is not a solid foundation for the continuation an ancient people—even one with a schmear.

1  “The Rise of Social Orthodoxy: A Personal Account,” April 2014.

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