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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.

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(David Shankbone/Wikipedia Commons)

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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Izzy says:

Cartel? You got to be kidding. It is a good system.

Gene says:

Not to the topic but why Reform and Reconstructionist movements are continued to be called “Judaism”? The fact that Jews represent more than half of Reform congregations does not give them that right – does it? I mean, at one point more than half of the members of the communist party were also Jews but nobody called it Jewdaist party then. Isn’t time came to end the confusion?

Glenda says:

@Gene: Please stay on topic.

Dror Ben Ami says:

The only issue which is important concerning American rabbis is that each year, each and every one of them declare: “Next year in Jerusalem” yet almost none of them make aliya.

It is clearly written in the Torah that the first 70 rabbis stood with the 10 dis-honest spies against Moses. They refused to enter the Promised Land and they counselled the people to return to Egypt. Isn’t nice to see that some things never change…..

Two thoughts:

A self-defined movement with a seminary seems obligated to use rabbis from that movement, no?

The “movementization” of Judaism keeps many otherwise enthusiastic candidates from would-be clergy who would rather serve Jews, Torah and G-d than Cincinnati, New York or Jerusalem.

Daniel says:

As one who has been in the system, I think the Duke Professor needs to look again at the Reform system. With the exception of the “years experience”: restriction, which i am past anyway, Reform Rabbis who are members of the CCAR are free to look at any position we want. If it is a position that “listed” with the CCAR/URJ placement office, then we simply request the office to send our resume. Any other position we learn about we are free to send our resume to the congregation/organizaition on our own (including non congregational positions that list with the placement office).

Furthermore, Reform congregations, even if the list in the process are free to interview non-CCAR candidates and list the position in other places (like jewishjobs.com), and no sanction will come to them if they choose to hire someone outside the system.

There is a difference for the students as they are coming out of school, but that only affects one time of placement, and only until “match day” after which any graduating student is free to apply to any job (with the years experience restrictions still in place for positions in the system).

Ultimately I have taken a job outside of the system, in no way do I expect any penalties or sanctions to come my way and I know that if in the future I choose to go back into the system, as long as my dues are paid, I will be welcome back into it.

Zisse says:

@Dror: “It is clearly written in the Torah that…”

Can you perhaps supply chapter and verse on that?

ahad ha'amoratsim says:

It’s been decades since I took anti-trust, but the implications of this theory are fascinating. Does Professor Richman view congregations affiliated with the non-Orthodox movements as for-profit businesses that are subject to the laws against restraint of trade, and not as religious bodies exempt from governmental oversight of their internal regulation? If so, what does he view as the relevant market for anti-trust purposes? What are the barriers to competition and particularly new entry?

It seems that he demands permission for his congregation to hire a candidate who was ordained by another movement with other beliefs and other standards. Does this mean that he considers beliefs and standards irrelevant to the purpose of his movement, or the movements standards and beliefs to be irrelevant to his congregation?

Be careful what you ask for, Professor.

Moshe says:

The esteemed professor trotted out this naarischkeit in the Forward about 5 months ago, and now Tablet has gotten the second bite out of the apple. Let’s be serious, in the US the Federal Government is not going to prosecute any religious denomination for the manner in which it places its clergy (too many First Amendment issues). Moreover, as opposed to Standard Oil or AT&T, which held monopolies on commodities and services, there is no such monopoly in the field of congregational placement; no one forces any synagogue or church to be a member of any movement or denomination. Any synagogue can opt out of its movement.

The crux of Professor Richman’s complaint was that the Conservative Movement would not allow (ie. would not keep his congregation in good standing in the United Synagogue), his synagogue to hire a rabbi who was not a member of the Rabbinical Assembly, the association of Conservative rabbis. What Prof. Richman won’t tell you is that non-RA rabbis who serve in Conservative congregations usually are much cheaper to hire. Hence, we have a congregation which wishes to continue to be affiliated with the Conservative movement, while demanding the right to hire non-Conservative rabbis. Talk about having your cake and eating it.

In America every religious denomination is autonomous in terms of the standards which it chooses to enforce among its congregations. The RA and the United Synagogue will state that the placement rules are necessary to ensure that properly ordained clergy serve their congregations. Is there a court in the US which will want to involve itself in examining the religious standards which a denomination sets for its clergy? I think not.

This is probably the latest example of what is commonly called “something so stupid, only an academician could think it up”.

The issue isn’t whether Judaism needs movements but whether rabbis could go outside the “system” and establish their own union. That would be as ugly as the formation of the first labor movements, but if the rabbis feel that their interests could be better protected that way, then they can go for it. All of this assumes, of course, that being a rabbi is just a job like any other and that their business is the God Business and therefore subject to anti-trust actions. We want our rabbis to be there for us 24/7 but we don’t want to pay them enough, therefore the union.

Dror Ben Ami says:

To Zisse,

Basically the story begins in Numbers chapter 13 line 12 and continues on to the end of chapter 14. There were 600,000 plus Israelites and the tribe of Levy. Out of them all, only Joshua Ben Nun and Caleb were allowed to enter into the Promised Land.

The first 70 rabbis received some of the spirit of Moses they started to sing and dance. Joshua ben Nun asked Moses to make them stop. Hence he was not one of the 70.

Possibly, Caleb was one of the 70, but he is not listed as such. Therefore, the 70 were amongst those who stood against Moses and died in the desert (or, if you insist, 69 of the 70, but there is nothing which says Caleb was a rabbi).

It is a historical fact that American rabbis were against the establishment of a Jewish Homeland in Palestine before world war II and it is also a historical fact that the Orthodox rabbis in Poland advised there congregations not to listen to Jabotinsky when he urged them to flee fascist Europe

Michael says:

Yasher Koach! Finally – a serious ethical scandal in which the Orthodox are actually CLEAN! gives me a real Mechayah!

lebalo says:

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.
Well said, Ahad: an excellent judicial admonishment.

To “double the instruction,” I would order Plaintiff, in my explanation of granting defendant’s motion to dismiss for failure to state a cause of action, to pay all costs of defendant, and, order plaintiff to at least one, but not more than the number of viewings of “The Frisco Kid,” it takes to understand what had been the sustaining tradition was for the greatest part of those two thousand years, and forward to the court proof of the aforesaid w/in 30 days. Failure by plaintiff to comply with the order of this court will subject plaintiff to a sentence of indeterminate self-delusion and self-centeredness.

benj says:

Since non of these people are real rabbis, who cares ?
Could not US Jewry become more like the other Jews in the world and stop these absurd goyish “denominations” and go back to the real Jewish tradition ?
I mean do like the others – be secular, traditional, religious, whatever but don’t come and invent some weird Americanized cult and call it “Judaism”.

I am not a Lawyer, and according to many posting above, I would not be a Jew, but that is between me and G_d, not between me and you.

I thinkt he critical questions of the above article are the extent to which these insitutions are restrained by the Commerce Clause and Labor Laws in general. The argument at some level is that the Rabbinic Assemblies are reducing competition which raises prices. Professional Sports teams get around this by having a club structure that congress grants a specific exception to which aloows them to avoid open competition (the baseball commissioner can limit the number of teams, take over management of a team that is not serving the needs of the overall organization, limit salaries of players, limit recruiting of new, etc.), If a company did that we would sued for anti-competativeness. Limiting the teams keeps ticket prices up. Limiting salaries hurts players (companies cannot fix the price of labor by agreeing to pay a certain level or even exchanging information about what you pay employees directly with a competitor is illegal).

So the legal questions seem to be, are temples and our leadership club-like organizations which should be exempt from open market laws AND should employees (Rabbis and Cantors) be protected from anti-competative labor practices which limit their ability to compete for jobs.

I think Kim’s comment above gets to the heart of the disagreement “we don’t want to pay them enough”. The question is whether the movement’s leadership should determine what is enough or should an open market competing for talent make that determination. The US laws assume the latter and expect those seeking exceptions to prove the former is appropriate.

Does the search for a Catholic priest by a Catholic church run afoul of laws prohibiting discrimination based on marital status?

chloe says:

as to Orthodoxy, anyone wo/man enough to take on the RIETS-YCT ‘matzav’?

Shabbat SHALOM

Harold says:

Dror Ben Ami is kind of funny. He obviously believes in midrash, rather than taking the words of the Chumash at their p’shat (literal) level. But when he takes the 70 people whom the Chumash calls “elders” and decides to call them “rabbis” (a word that doesn’t appear anywhere in the Bible), he makes clear that it’s his own midrash that he believes in. Yes; it’s pretty funny.

Deborah says:

I read the comments on Tablet because there is often an intellectual and engaging conversation that ensues about the substance of the articles. Not this time! Most of the above comments are arrogant, stupid drivel that do not even come close to addressing the issue raised by this interesting article, written at a time when the majority of American Jews are not affiliating with synagogues. We need to rethink the role of the synagogue as the front door of the community and if you can’t do any better than reply that we all need to be Orthodox or make aliyah, then you should really just keep your thoughts to yourself.

Dror Ben Ami says:

to harold,

the rabbis today speak of their authority to interpret the laws and their sources of oral law interpretations as coming from those first 70 “elders”. samuel was a prophet, but it is written that in those times people such as samuel were called “seers”.

today they are called “rabbis”, in the new testament they are referred to as “pharisees”, in the torah they are referred to as “elders”. no matter what they are called, their function was to teach the law and to advise the people.

if you think it is funny that religious leaders make false declarations year after year, then maybe you should take a closer look at what that says about you. there is no “law” in the Torah requiring one to say “next year in jerusalem”.

today’s rabbis regularly describe themselves as: “God’s co-creators” and “God’s partners”. you want to remainin america and play “word games” about what the rabbis call themselves, fine. maybe that is the reason you are not in jerusalem….

Lou Adams says:

I am tired of Jewish I want things my way whores. Jews have chosen to walk away from Judaism for centuries, if you don’t like Torah; walk away.
Stop trying to recreate Judaism in your own image.

benj says:

“We need to rethink the role of the synagogue as the front door of the community and if you can’t do any better than reply that we all need to be Orthodox or make aliyah, then you should really just keep your thoughts to yourself.”

Why ? People who don’t think like you can’t express their ideas ?
By the way, indeed make aliyah, enclose yourself in an orthodox ghetto, or disappear – these are the only choices that you have, don’t try to foll yourself.

Oh my! I deeply love my son Joshua and have great respect for his decision to join the Cantorate. As I read these comments, however, I feel somewhat ashamed of all of us: Jew versus Jew- or is it “Who among us is the REAL Jew??” All in the name of religion??? This is bigotry at its worse. In the 1930’s my parents fled a madman bent on purifying the human race. Are we now bent on “purifying” Judaism, on weeding out the Jewish “whores” (see a previous comment) from the what… the “purebred” Jews? Hitler did not seem so interested in these subtle distinctions among us Jews.

Fortunately, from what I understand in my son’s case, all involved behaved in a professional manner, trying to balance their own interests with a strong desire to behave decently and fairly; respecting their fellow Jews and their fellow Jews’ congregations. All acted like Jews in the very best sense of what it means to be a Jew. I am proud of you Joshua for participating as and like a Jew in that process. Mazel Tov to you and to both congregations and to HUC.

hana blume says:

In Pittsburgh, we have knowledgeable, engaging Orthodox rabbis, and we had a similar Reform one before he made aliyah. But, as far as I can tell, the Conservative movement either doesn’t produce similarly scholarly rabbis, or doesn’t send them here. Whatever the case, the movement needs to change.

benj says:

Dear Susan,

Hitler is not the one who decides who is a Jew but Jewish Law.

A Jew is someone whose mother is Jewish or who “converted” (not the right word but there is nothing else in English) with a legitimate Beth Din. This means that someone whose father is Jewish only is not Jewish and someone who converted with the Reform “rabbis” is not either.

But, we can’t also say that these people are just non-Jews because obviously they are not. In practice, the “half-Jews” can have a more lenient conversion process (at least that’s what I saw in Israel). I belive that the haredi anti-convert phenomena is dangerous and that conversions *in Israel* should be easier – in the diaspora, I don’t know, I think it would be dangerous.

If you’re considering a “rabbi” as an educator, he (ok, or she) must know the required material. Otherwise it would be like hiring a Spanish teacher who doesn’t know Spanish.

Joel Kaufman says:

While I suspect that the courts may toss out an action of the type Professor Richman suggests on First Amendment grounds, the antitrust laws in question are designed to protect against actions that misuse monopoly power to the public detriment. Thus, even if the actions of the rabbinical unions in restraint of trade are protected under the First Amendment, there is the deeper question of whether restrictions that are economically based rather than theologically based are morally appropriate. Interestingly, Jewish law may provide a different answer to this question than American antitrust law to the extent the former sometimes allows restraints on new entrants to protect the livelihood of existing tradesman. In any case, as someone who, a quarter century ago, learned much from Steve Sager, the now retiring Reconstructionist trained rabbi in Durham, I am sad to see that Professor Richman’s congregation may have been constrained by the RA rules from hiring whomever they feel will best serve the congregation

Meaningful words, I like it.

I’d need to examine with you here. Which is not one thing I normally do! I take pleasure in reading a submit that will make individuals think. Also, thanks for allowing me to comment!

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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.

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