JustASC

Sam Freedman at the Times reports on a North Carolina law professor’s challenge to the Conservative movement’s requirement that affiliated synagogues hire rabbis from their pool of Rabbinical Assembly members:

“Professional cartels are in some ways even more pernicious than a cartel of manufacturers,” Mr. [Barak] Richman, 42, said in a recent interview. “There’s a degree of paternalism. On the one hand, it’s genuinely born out of concern. The rabbis who run the placement system really think they know what’s best for their congregations. But by controlling the marketplace with their ossified rules, they are doing long-lasting damage.”

Like Mr. Richman, I served on my synagogue’s rabbinic search committee. Unlike Mr. Richman, we never thought of going outside the Rabbinical Assembly rules — mostly because we are a very movement-conscious congregation, and partly because a lot of our congregants are leaders in the movement.  

I would also defend the rules as bringing sanity and decorum to an already fraught process. Rabbinic Assembly  membership (open, by the way, to rabbis not trained in Conservative seminaries) and USCJ rules assure quality control, and, like a union, protect the worth and value of a small pool of specially trained rabbis from being undercut in the marketplace by competitors who literally and figuratively haven’t paid their dues. It also protects the rabbis from synagogues that would use a wide-open process to deflate compensation, or wring changes out of the movement that haven’t been achieved through the current system of rabbinic authority, congregational input, and lay oversight. In other words, if you don’t like the current movement parameters on performing an intermarriage, you can tell your R.A. candidates that unless they are willing to buck the system the job is going to go to a non-R.A. member. At that point, you don’t have a movement.   

There are indeed strong arguments that denominationalism is dying or should be, but as long as it persists I understand why a movement would want to maintain its standards and hold its member institutions to a common philosophy and set of practices. Synagogues have the option of breaking away from this “cartel” and many do, by leaving the movement and declaring themselves independent or affiliating elsewhere – that seems the best corrective if they feel similarly constrained by the R.A./USCJ “monopoly.”  

Perhaps Mr. Richman has a point that opening up the movement to a larger pool of rabbis might foster creativity and competition, but his “cartel” analogy and First Amendment arguments appear to be a stretch, as my colleague Jared Silverman, himself a lawyer, explains:

As an antitrust professor, Richman should know that the definition of “market” is critical, the issue being competition in the “relevant market” and freedom of choice.  Obviously, a potential Jewish congregant has the choice of synagogue affiliation, and a congregation has the choice of whether to affiliate with a denomination.  In essence, Richman is arguing the that any fast food fried chicken place can call itself Kentucky Fried Chicken without adhering to the conditions of being a KFC franchise.  The First Amendment argument is a strawman.  The restrictions of the First Amendment are applicable to the government, not to private individuals or enterprises.