Is Conservative Judaism a Cartel?

CLR Forum reader John McGinnis points out an interesting article in the New York Times this weekend, about Duke Law Professor Barak Richman’s quest to have the courts declare Conservative Judaism’s rules for naming rabbis a violation of the Sherman Act. It’s not entirely clear from the Times article, but, as I understand it, synagogues that affiliate with Conservative Judaism must select rabbis from lists approved by the Rabbinical Assembly, a membership association of Conservative rabbis.  Richman believes this mechanism makes the Rabbinical Assembly an illegal “cartel” that “harms both the economic welfare and the religious interests of individual congregations.” He argues that the ministerial exception properly applies only to hierarchical religions and employers, not “congregational denominations,” like Conservative Judaism, in which individual congregations, not the central body, employ clergy. You can read his argument in an amicus brief he filed, along with several other antitrust scholars, in the Hosanna-Tabor case.

I don’t know whether this mechanism would violate the Sherman Act in a commercial setting. I’m confident the logic of the ministerial exception applies here, though. From what I can gather, Conservative Judaism is a hybrid polity, not hierarchical but not strictly congregational, either. Authority seems to be shared between the central body, the United Synagogue of Conservative Judaism, and local congregations. It hardly seems inappropriate to require local congregations that affiliate with the central body to choose clergy the central body approves; otherwise, the central body could lose control over the movement’s meaning and message. Although Professor Richman is correct that the rules impinge on individual congregations’ power to choose whomever they wish as clergy, that’s just a consequence of affiliating with the central body. If congregations want total freedom of choice, they can organize outside the Conservative movement and select whomever they wish.

3 responses

  1. Mark, thanks for weighing in. One thing that’s interesting about this case, as it relates to the Ministerial Exception, is that the RA leaders say Conservative Judaism is quasi-hierarchical, as you suggest, but I say its entirely congregational. It would be enormously useful if, in this forum, certain metrics were described that could help distinguish between congregational and hierarchical or hybrid polities (without merely asking what the leaders think).

    One quick word of correction: the alleged cartel is an association of rabbis, the Rabbinical Assembly (and, according to every antitrust expert I’ve spoken with, the association’s commercial conduct is a paradigmatic antitrust violation; no debate there). United Synagogue is an association of congregations. If congregations pay dues and comply with certain standards, they maintain membership in good standing (for whatever that’s worth). Nothing in those USCJ standards requires a congregation to hire a rabbi of a particular kind, see http://www.uscj.org/LeadingKehilla/Leadership/StandardsforCongregationalPractice.aspx
    To the contrary, the standards explicitly account for the possibility that the rabbi is not a member of the RA (“The contract with the rabbi should state that regardless of whether the rabbi is or is not a member of the Rabbinical Assembly,…”).

    This is an issue of great import to many Conservative and unaffiliated lay leaders across the country. This Forum would do a major service by parsing the relevant legal issues.

  2. Barak, thanks for writing. In the church autonomy setting, “hierarchical” means a polity in which a central authority – a bishop or synod, for example – has ultimate say over doctrine and practice, including approval of clergy for individual congregations. The Catholic Church is a good example of this (though, in reality, “ultimate say” may be aspirational!). “Congregational” refers to a church in which the local congregation has ultimate authority over such matters. And by “hybrid” I mean a church in which the local and central bodies share authority over these questions. For purposes of the civil law, it’s all a matter of how the polity chooses to structure itself.

    Now, a congregation may belong to an association of similar congregations and still retain ultimate authority over doctrine and practice. So, for example, if a local church joins a larger association for purposes of pooling funds for missionary work, but retains control over its doctrine and practice, the church would remain congregational. As I say, it all depends on how things are structured. The reason I said Conservative Judaism appears to be a “hybrid” is that I inferred that the Conservative movement requires local congregations to agree to choose rabbis from an approved list. That’s what the Times article implies. Perhaps that’s incorrect. But if the Conservative movement doesn’t require local congregations to choose from a list, I’m not sure what the impasse is – that is, I’m not sure what the fight was between your synagogue and the Conservative movement.

    I think it would be great for you to write a guest post about this for CLR Forum. We’ll then write the Rabbinical Association for a response. Interested? Best, Mark

  3. I’d be happy to write a guest post, and I’d welcome a thoughtful engagement of the issues with the Rabbinical Assembly. I genuinely don’t think they’ve thought though legal issues dispassionately or with precision. But I’m especially interested to hear from other regulars to this blog — perhaps they can help digest the legal issues.

    Thanks for the “hierarchical” versus “congregational” illustrations, which I recognized have been articulated in the caselaw. But resolving my dispute with the RA requires parsing the issue farther: what is “ultimate authority” and what is “control over doctrine and practice”? I don’t see how our individual congregation is subject to anything the RA instructs: we own our own building; we are an independent nonprofit corporation under the laws of North Carolina; we pay for everything ourselves, and the rabbi is an employee of the congregation; we have our own ritual committee, which makes decisions regarding practice; and we have a board of directors, that appears to have ultimate authority over all matters. This has all the hallmarks of a purely congregational polity, correct?

    To say that our synagogue “agree[d] to choose rabbis from an approved list” (which I recognize is a hallmark of a hybrid polity) is a bit of a mischaracterization. We have no pre-arranged obligation to the RA. We deal with the RA only when we are in need to hire a rabbi, at which point the RA says to us: hire from us and consider exclusively at the rabbis we allow you to interview (the “list”) or go elsewhere and be prohibited from interviewing any of our rabbis. This ultimatum ironically shows theological flexibility, but it has economic coercion because the RA has market power, i.e., its membership constitutes the great majority of rabbis that we would want to consider. Reciprocally, rabbis remain in the RA in large part so they can maintain access to the RA’s placement service.

    To sum up, I say that Conservative Judaism is entirely congregational. The Rabbinical Assembly leadership says its more hierarchical, but the elements of hierarchy does not involve our consent; to the contrary, it rests on unilateral coercion. Based on these facts, perhaps readers of this blog can help clarify the legal issues.

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