Open thread: Rabbinical hiring rules by seminaries are “inescapably” illegal

This just in by anti-trust lawyer and professor Barak D. Richman :

The inescapable conclusion is that the [Conservative movement's Rabbinical Assembly]’s practices are illegal, and have been for a long time. Why have these illegal practices persisted? The history of the Sherman Act reveals that concentrated power can be difficult to dislodge. This inflexibility also reveals a systemic tragedy within Conservatism, whose history includes efforts by centralized powers to resist valuable innovations that spread across America.

Richman said his cursory investigation of Reform, Orthodox and Reconstructionist hiring practices could also be illegal. Discuss.

Filed under Rabbinical Assembly, RRA, RRC

9 Responses to “Open thread: Rabbinical hiring rules by seminaries are “inescapably” illegal”

  1. There are some great comments below that article. Some from lawyers, some from Conservative and Reform Rabbis, some from congregants. The general consensus seems to be that the First Amendment would be infringed upon were federal anti-trust provisions enforced on religious organizations like the RA.

    Another comment pointed out that were these anti-trust provisions to hold up with religious communities, they would decimate the Catholic and Protestant churches, who have procedures more authoritarian than the RA in appointment of priests.

    For some context, in the end the author’s congregation chose to disassociate from the Rabbinical Assembly and hired a Reconstructionist Rabbi. Once they did so, according to the comments, 8 new families joined the congregation, including intermarried and same-sex couples. So, this wasn’t a conservative congregation to begin with. It was just coasting in the conservative movement on the inertia set by the previous Rabbi and the generation that selected him.

    With that, I think it’s a bit disingenuous for Richman to be arguing anti-trust provisions, while the real issue seems to have been the conflicting visions of Jewish life between the RA and his congregation.

    Victor · October 5th, 2010 at 8:08 pm
  2. I don’t know too much about anti-trust laws in America (or anywhere else, for that matter…), but I it seems that the fact that shuls opt into these hiring schemes would have to be a factor.

    Also, are non-profit trusts even a thing?

    David A.M. Wilensky · October 5th, 2010 at 8:41 pm
  3. Well, except for that Religious institutions are actually exempt from *all kinds* of rules – including hiring rules (- otherwise how could Conservative and Orthodox shuls refuse to hire women rabbis? (etc)).

    KRG · October 5th, 2010 at 8:58 pm
  4. How can Hooters refuse to hire male waiters?

    Desh · October 5th, 2010 at 10:45 pm
  5. I’m not sure the author is right.

    First off the issue is obviously very similar to the case that was litigated recently against computer technology companies, involving a quasi-official agreement to stop luring each other’s employees away.

    In other words the agreement was meant to improve relations between business working in similar fields — the downside is that it could plausibly reduce competition. So there’s a tradeoff and many inherent unknowns.

    If you want to talk “antitrust” among shuls; on the practical side, you’ve got the freedom of religion element to begin with — and any attorney general who tried interfering with religious institutions’ hiring freedom would find himself slapped down by virtually every state legislature in America, and then by Congress.

    In the Jewish world, AFAIK Orthodoxy at least just isn’t centralized enough to have a hiring process of the RA’s nature — where there’s an actual incorporated body that acts as a centralized hiring referee and information gatekeeper.

    Reform and Reconstructionism both have centralized seminaries and rabbinical organizations…. but I don’t know if they have similar policies to the RA.

    Basically it’s clear that the RA’s hiring regulations impinge somewhat on its members’ freedom, but the members accept those impositions as an acceptable cost — or desirable benefit — of joining the movement. From the RA’s perspective it’s basically about “darchei shalom” or preventing two Conservative congregations on opposite sides of the street from trying to lure away each other’s leaders.

    I see why this kind of policy could obviously feel obnoxious and irritating to some members…. but trying to enlist the government to remedy it is IMO strongarmed and totally unwarranted. The majority of RA members appear satisfied with the present status quo. And those that aren’t can opt out.

    Eric · October 5th, 2010 at 11:02 pm
  6. NOt to mention the fact that a significant number of the shuls simply ignore or cheat on these rules anyway. Ultimately, it limits the rabbis far more than the shuls.
    OTOH, the intent for example, of the rules about hiring rabbis for certain size shuls at certain intervals in their careers was intended to keep big shuls from hiring just-out-of-school rabbis for relatively low wages, and then firing them when they get to the point where they would be earning more.Not to mention that it isn’t unreasonable on the rabbi side to want a rabbi to have some experience to deal with a larger shul – granted there are probably few people who immediately after ordination are ready to take on a thousand member shul- but I’ll bet there aren’t many – so I think that it could reasonably be considered a reasonable job requirement to have some number of years experience – larger shuls are different from very small shuls (although I”m sure there are small shuls that really need someone with more experience too).

    KRG · October 6th, 2010 at 6:59 am
  7. This sounds like exactly the type of behavior the Sherman Act was written for – busting unions.

    Charles · October 6th, 2010 at 10:46 am
  8. I think the whole article is ludicrous. You’re conservative because you want an RA rabbi. You want an RA rabbi? Play by the rules. Otherwise, no rabbi for you.
    (You could stop being conservative at any minute).

    Amit · October 6th, 2010 at 9:19 pm
  9. While I agree with the comments that point out that the Conservative movement is protected from the Sherman act by the First Amendment, I think that Richman’s article points up the complexities and problematics of the movements in American Jewish life at the moment. In 2007-8, a number of friends of mine, Rabbis at their first or second congregation, were terminated. Not only that, but their congregations left the denomination as a result of the contract renewal/candidate search process. So the whole system is problematic, and the “closed shop” mentality of the Rabbinical associations is only one part of the problem.

    Simcha Daniel Burstyn · October 9th, 2010 at 3:19 pm

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