Supply and Demands
The major movements of American Judaism require congregations to follow their rules when hiring clergy. A Duke law professor, a leader at his synagogue, says the restrictions create an illegal monopoly.
When Loyola University in Chicago convenes its annual colloquium on antitrust law Friday, the assembled lawyers will review the landmark breakup of the Standard Oil monopoly, a hundred years ago. They will discuss policy on mergers and the state of European intellectual-property law. They will listen to a lunchtime keynote from a commissioner of the Federal Trade Commission, Edith Ramirez. And, sandwiched in the middle, they will hear a presentation from a Duke University law professor titled “An Antitrust Analysis of the Rabbi Cartel.”
The “cartel” in question is the Conservative movement’s Rabbinical Assembly, which tightly governs the placement of rabbis with member synagogues across the country—a delicate matchmaking process whose result is often a major determinant of whether a congregation will thrive. The professor, Barak Richman, is a lay leader at his synagogue in Durham, N.C., and has spent the last eight months developing his claim that what started as a way to make sure that far-flung synagogues got their fair pick of rabbis graduating from the seminaries—and to prevent internecine poaching of successful clergy between competing synagogues—may today run afoul of the same federal antitrust statutes that brought down Rockefeller’s oil empire.
In Richman’s view, the Rabbinical Assembly and its analogues in the Reform and Reconstructionist movements use their oversight of the hiring process to threaten the autonomy and, at a fundamental level, the independent spirit of individual synagogues. (Richman excludes the rabbinic association of Modern Orthodoxy, known as the Rabbinical Council of America, from his analysis.) “Each placement system imposes severe restrictions on the labor market for pulpit rabbis without creating any identifiable pro-competitive benefit,” Richman wrote in his paper. “These rabbinic organizations are acting to advance their own commercial interests to the detriment of the welfare of consumers, namely the congregations and congregants who hire and ultimately benefit from a rabbi’s services.”
The argument lays bare a facet of Jewish life that remains obscured to the vast majority of American Jews today, who think of their congregations as independent religious communities and who are far less likely than their grandparents to know—or care—about the umbrella movements. But the rabbis’ and cantors’ professional associations do what secular professional associations do: maintain standards, facilitate hiring, and organize pensions. Under the current system, rabbis and cantors seeking jobs declare their candidacy through their movements’ placement offices, rather than operating as free agents. On the other side of the equation, synagogues agree to accept panels of candidates screened by the central placement authorities, rather than posting their jobs on public job boards or recruiting privately. Rabbis and cantors follow the rules in order to protect their access to future jobs at their movements’ synagogues; congregations, most of which go through the hiring process only infrequently, follow the rules because it’s easier and to preserve their good standing within their movements. Bucking the system requires an appeals process that can, in some cases, cost congregations, and rabbis, matches that both sides hope to make.
The idea that American synagogues are, at such a fundamental level, subject to a centralized leadership is a foreign one to most of their members—there is, after all, no Chief Rabbi in this country and no sense that a Jew in Pittsburgh is somehow answerable to an authority in New York, let alone in Jerusalem. The question of what the appropriate relationship between synagogue and movement should be is emerging at a moment when the Conservative movement, in particular, is painfully aware of the need to re-engage its constituents; indeed, its annual conference, last month, was devoted to the issue of rebranding. It underscores the degree to which mainstream synagogues feel the movements have hampered their efforts to attract younger Jews at a time when independent minyans and other groups are succeeding with a less institutional approach to Jewish practice. And it dovetails with a general decline in support for unions—which the rabbinic associations, in some sense, are—among a younger generation accustomed to union-busting. But Richman’s claim, first set out in a Forward op-ed last September, is that the movements’ constraints on rabbinic hiring aren’t just run-of-the-mill Jewish parochial concerns—it’s that they’re actually illegal.
Grumbling over the rules imposed by the rabbis’ and cantors’ professional associations is, by itself, nothing new. The issue was explored at length a decade ago by the journalist Stephen Fried in his book The New Rabbi, in which seniority rules restricting hiring by large synagogues became a major plot point, once the Conservative Philadelphia congregation at the heart of the story decided it wanted to promote its young assistant rabbi rather than hire a more experienced stranger from somewhere else to replace its retiring senior rabbi. (The Rabbinical Assembly eventually bent its rules to accommodate the synagogue, Har Zion, one of the largest and most powerful in the country.) And the idea that the movements might use their control over the hiring process to influence theological decisions by its member rabbis surfaced in 2005, when Ayelet Cohen, a Conservative rabbi, complained to the New York Times that she was being punished by the Rabbinical Assembly placement committee because she had officiated same-sex weddings. (The movement responded that Cohen was only being called out for violating the terms of a waiver allowing her to work at Congregation Beth Simchat Torah, a largely gay and lesbian Manhattan synagogue that is unaffiliated with any major movement; the Conservative movement voted the following year to allow its members to marry gay couples.)
The current system emerged in the 1960s to impose order on what was largely an ad hoc process, according to Marc Lee Raphael, professor of Judaic Studies at the College of William and Mary and author of a new history, The Synagogue in America. “In the old days, and this was true at the Orthodox seminary and the Conservative seminary and the Reform seminary, the chancellor of the seminary just told new rabbis what pulpits they were going to,” said Raphael, who also serves as rabbi of a Reform pulpit in Maryland. “The next step was the old boys’ network, where the president of the synagogue would call a guy and say, ‘We’re twice as large and pay twice as much and why don’t you come over.’ So, the placement process replaced two terrible ways of hiring rabbis.”
But the core of Richman’s argument, which has not been tested in any court, is that the rabbis’ professional associations organized their system in a way that violates the terms of the Sherman Act, which was passed in 1890 to combat the power of the railroad and oil monopolies, and later helped break up the Bell System. Rather than operating as a neutral clearinghouse, the hiring process run by the rabbinic associations is structured to limit both member rabbis and affiliated synagogues from using other avenues for making hires. And it turns out there is precedent for using the Sherman Act against secular professional associations for just this kind of behavior: In 1995, the Justice Department successfully sued the American Bar Association, the body governing the legal profession, on the grounds that it was using its cartel power to unfairly manipulate law schools into guaranteeing higher salaries for law faculties.
Richman’s crusade against the Rabbinical Assembly emerged from his personal frustration with a system that prevented his Conservative synagogue, Beth El, from interviewing Reconstructionist candidates to replace its retiring senior rabbi, who had been ordained in the Reconstructionist movement and obtained a waiver to preside over the congregation when it was still a Jewish backwater, decades before the universities in the area’s Research Triangle emerged as a hot destination for young academics, many of them Jewish. His initial salvo in the Forward elicited a statement from the Rabbinical Assembly asserting that its system “encourages talented individuals to enter and remain in the profession” and thereby “benefits not only rabbis and their families, but the Jewish community as a whole.” (Representatives of the Rabbinical Assembly did not respond immediately to phone and email messages left seeking comment; Richman declined to speak to Tablet Magazine on the record, citing potential legal action against the Rabbinical Assembly.)
But Richman is far from alone. Congregation Beth Elohim, a popular Reform synagogue in Brooklyn, ran into difficulty earlier this year over its efforts to hire a star cantorial student on the verge of graduation named Joshua Breitzer. Under the ranking system used by the American Conference of Cantors—Reform cantors’ equivalent of the Rabbinical Assembly—Beth Elohim was required to hire a cantor with more than three years of experience. In order to hire Breitzer, the synagogue had to appeal for a special waiver, which it eventually won. But the process took so long that they nearly lost their candidate to another congregation that could offer a job without waiting for secondary approvals. “In the end, we got who we wanted,” Beth Elohim’s rabbi, Andy Bachman, says now, “but it was an unnecessary wringer that we needed to go through.”
Part of the problem is that having a national office act in any substantive capacity is antithetical to the idea of local control. “I’m happy with how everything worked out, but down low, on a personal level, nothing was going to stop me from getting the best cantor, or the best rabbi, I could for our congregation, whether it was someone who was Reform or Conservative or Reconstructionist,” Bachman said. “We don’t need the national movement to tell us what Jews in Brooklyn need—we know what Jews in Brooklyn need.”
It’s an irony Richman notes in his paper: The approach taken by the movement may in fact be strangling the very community it purports to support. “It amounts to an effort to deprive local congregations of the very autonomy and self-determination that has fueled the blossoming of diverse Jewish experiences for two thousand years,” Richman writes. “Were the rabbinical organizations to adopt less restrictive rules that were consistent with the Sherman Act—rules that empower individual communities and defer to the preferences of both congregants and rabbis—it would kindle the passions and empower the dynamism that Jewish communities have shown over time.”
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