Kitniyot Revisited

Last year shortly before Pesach I was asked during a Kiddush Konversation about an article which had been published in Voices of Conservative Judaism which summarized a responsum by Rabbi David Golinkin permitting the consumption of kitniyot during Passover. My response was that Rabbi Golinkin was an Israeli Conservative rabbi writing for the Israeli community and that I was not prepared to endorse the practice unless and until it was permitted by the Committee on Jewish Law and Standards of the Conservative Movement (CJLS or Law Committee.)

A quick review of the term kitniyot. Often translated as “legumes,” kitniyot are foods which Ashkenazi Jews have traditionally avoided during Pesach even though they are not chametz, leaven. Sephardic Jews have always eaten them. Among the products considered kitniyot are beans, rice, peas, corn, and mustard. Although Ashkenazi Jews have refrained from consuming them during Pesach, it was permitted to possess them and thus they were not sold before Pesach or disposed of as chametz is. Knowledgeable Ashkenazim knew that it was even permitted during Pesach to eat from utensils which had been used to prepare or serve kitniyot as long as one avoided the kitniyot themselves.

At the end of December 2015, the Law Committee passed (by a vote of 19-1 with 2 abstentions) a responsum by Rabbis Avram Reisner and Amy Levin permitting all Jews to consume kitniyot during Pesach with certain guidelines. It’s important to understand what those guidelines are because this responsum is not a blanket permission to eat any product that seems not to contain chametz just by glancing at the ingredients.

Rabbis Reisner and Levin go through the history of this practice and the various reasons that have been adduced as to why it has been followed. (It should also be noted that throughout history there were a number of great sages who viewed this as a mistaken custom and tried to eliminate it, while others said that while there was no real basis for it it should nevertheless be observed out of deference to previous generations.)

No one is absolutely sure why Ashkenazim originally prohibited kitniyot but the classic halachic literature has adduced three possibilities:

1. kitniyot were either stored or cooked in the same manner as chametz and people might accidentally eat chametz thinking it was only kitniyot;
2. kitniyot were harvested, stored and transported together with chametz and there was a possibility that the two would become mixed together;
3. kitniyot and wheat (the most common chametz grain) were usually cooked together and it was considered impossible to permit one without dragging in the other.

Rabbis Reisner and Levin point out that these reasons are no longer cogent. Our marketplace is not like those of previous generations; we buy our foodstuffs in discrete packages, produced and labeled with both governmental and market oversight. We need not be concerned that permitting one will perforce lead to the accidental consumption of the other.

And yet, we are generally careful not to override centuries of precedent without very good reason. In my words -- not theirs -- the burden of proof is on the one who wishes to change previous practices. We don’t have to justify why a certain practice should be maintained; we need to justify why a certain practice should not be maintained.

What then is the justification for overturning this custom?

Rabbis Reisner and Levin cite two: increasing the joy of the holiday and the inflated cost of products under Pesach supervision.

Some years ago the Law Committee had already approved consumption of kitniyot by vegetarians who feared that they might not get enough protein over the holiday. This reasoning is now extended to all of us; many Jews who are not vegetarians are nevertheless seeking to cut down on their consumption of meat and of other animal products, for both health and ethical reasons. Beans in particular serve as a good source of protein in the absence of meat and permitting all Jews to consume beans on Pesach will increase our ability to eat a healthy diet without a lot of meat or dairy.

Similarly, we are all aware of how incredibly expensive kosher-for-Passover products can be. Permitting kitniyot will allow for a more balanced diet with less reliance on pre-packaged, expensive foods, and Rabbis Reisner and Levin point out that keeping the cost of Jewish observance reasonable has been cited as a halachic principle going back as far as 3rd century Babylonia.

The CJLS thus rules as follows:

In order to bring down the cost of making Pesah and support the healthier diet that is now becoming more common, and given the inapplicability today of the primary concerns that seem to have led to the custom of prohibiting kitniyot, and further, given our inclination in our day to present an accessible Judaism unencumbered by unneeded prohibitions, more easily able to participate in the culture that surrounds us, we are prepared to rely on the fundamental observance recorded in the Talmud and codes and permit the eating of kitniyot on Pesah.

However, this is not a blanket permission to rely on ingredient lists to determine if a product is acceptable for Pesach. While such a procedure might be justifiable during the rest of the year (given that prohibited food is nullified by permitted food which is 60 times its volume) it is not permitted during Pesach because there is no nullification of even the smallest amount of chametz which might have become mixed in during the manufacturing process.

These are the particulars of what is now permitted:

1. Fresh corn on the cob and fresh beans (such as lima beans in their pods) may be consumed and purchased before or during Pesach like any other fresh vegetables.
2. Dried kitniyot (beans, rice, legumes) can be purchased only before Pesach and must be sifted before the holiday to remove any grains of wheat or other chametz which might have gotten mixed in. Because of similar concerns of mixtures, they should only be purchased in boxes or bags and not from bulk bins.
3. Frozen kitniyot can only be purchased before Pesach and the consumer must either ascertain that the product is not produced on the same equipment as chametz (a real issue for frozen vegetables since the advent of bagged vegetable mixtures containing pasta) or else sort through the contents beforehand to remove any possible chametz.
4. Processed foods including canned beans still require Pesach certification due to the possibility of admixtures of chametz during production.

The good news regarding processed foods is that products from Israel with reliable certification “for those who eat kitniyot” are increasingly available, and the O-U has started certifying a small number of kitniyot-containing products as well for their Sephardic constituents. These products may now be consumed by all.

I want to also point out that just because something is permitted does not mean it is required. Failure to do everything the law allows you to do is not a violation of the law. I have no doubt that many of our people will be uncomfortable changing practices which they and their families have observed for centuries if not millenia; if this is you, you are of course free to continue refraining from kitniyot.

Similarly, since the synagogue kitchen should follow practices which allow as many Jews as permissible to feel comfortable with what they are eating or drinking, current practice for the Pesach seder and for kiddushes during Passover will remain unchanged for the foreseeable future.

If you have any questions or concerns, or would like a copy of the full responsum by Rabbis Reisner and Levin, please feel free to be in touch.

Some Brief Thoughts on Jewish Values and Public Policy

A recent article in the New York Times discussed Sen. Bernie Sanders’ statement that his father was a “Polish immigrant” without noting that his father was specifically a Polish Jewish immigrant. My friend Rabbi Michael Paley, who knew Sen. Sanders while serving as the Hillel Rabbi at Dartmouth College, stated that “nobody in Poland would have considered Bernie a Pole.” This is precisely so; my paternal grandmother was born in Warsaw but she was not Polish in any meaningful sense. She was not so much a Polish Jew as a Jew who lived in Poland.

American Jews, however, are American in ways that diaspora Jews have historically not been. This is not unique to the United States; it applies to Jewish community in other democracies as well but the American Jewish community is much larger both numerically and as a percentage of population than any other diaspora community. We have a significant impact on public policy. There are currently ten Jewish senators and 19 Jewish members of the House of Representatives. Three of the eight current Supreme Court members are Jewish, as are two of President Obama’s former Chiefs of Staff and the current and previous chairs of the Federal Reserve.

While Jews as individuals take all kinds of positions on issues of the day, I have always been intrigued by how to determine what Judaism per se has to say about a particular issue. I think this is not always a simple task, because the Jewish tradition never anticipated that Jews would be equal citizens in a pluralistic democracy. Jewish texts were written either for Jewish polities which were of course governed by Jewish norms; or for Jews who lived as at best a tolerated minority in a non-Jewish polity and had no voice in how they were governed. So the situation of American Jews is something which heretofore was unknown.

Our recent Kiddush Konversation about “Assisted Suicide in Jewish Law” was very interesting in light of the above. It is clear to me that halacha does not allow a Jew to commit suicide nor does it allow a Jew to assist another Jew to perform a forbidden act -- so that a Jewish physician could not assist a patient to commit suicide. But I went on to say that while I was quite certain that Jewish law forbids assisted suicide, it was not at all clear to me that it necessarily follows that Jews were obligated to oppose the so-called “Death with Dignity Act” now being considered by the Maryland legislature. After all, we Jews consistently tell our Roman Catholic friends that just because their religion forbids abortion is no reason for the state to enshrine their particular view as law for those of other religions or of none. That being the case, why should we ask the General Assembly to enshrine our particular view as law? How is this any different?

One of the things which I love about our Kiddush Konversations is that they are truly conversations. It is not a lecture or a sermon, there is real give-and-take. And in our discussion, I think we arrived at a methodology that might help sort some of these questions out.

While Judaism is clear that non-Jews are not required to observe halacha, there are certain values which Judaism posits are valid for all human beings, not just Jews. So it seems to me that a first step in arriving at a legitimately Jewish position on an issue is to ask, first: what are the values at stake. And second: are these values for everyone or just for Jews?

Let’s take a less controversial example than Assisted Suicide. No one doubts that Judaism permits non-Jews to eat non-kosher meat. But one of the values associated with keeping kosher is tza’ar ba’alel hayyim, avoiding cruelty to animals -- and thus the requirements of kosher slaughter which is designed to be quick and relatively pain-free. And this value is not just for Jews, so that while we would never seek to require non-Jews to keep kosher, it seems perfectly legitimate for Jews as Jews to back legislation which seeks to ameliorate the suffering of animals.

This methodology doesn’t solve all our dilemmas, of course, but I believe it is the start of some clearer thinking about the role of Jewish values in our public lives.