Jonathan Muskat

How Do We Determine When and to What Extent We Should Ease Social Distancing Restrictions?

Now that Pesach is over and now that the “curve” is beginning to flatten, we are looking to restart.  We are looking to restart the economy.  We are looking to restart our schools and shuls.  We are looking to restart our in-person social lives with our friends.  I would imagine that there currently is and there will be much difference of opinion regarding when we restart and how we restart.  Groups of Rabbis like those in the Five Towns and Rabbinic organizations like the Rabbinic Council of Bergen County have been issuing letters strongly advocating continued strict social distancing and the continued closing of our shuls.  I was wondering how we go about deciding how long and to what extent should we should maintain these restrictions.

Perhaps the initial response is that we should continue these practices until it’s safe.  Even though, as an example, davening with a minyan is a mitzvah and it is an important value especially for Jewish communal life, the mitzvah of “v’chai bahem,” of preserving life, is a superior value which would override davening with a minyan and we should only open up the shuls when we are safe.  But of the course the question is how safe?  We take risks in everyday life by leaving our house, by driving and by flying.  At the end of the day, we accept certain risks when we engage in certain behaviors.  The obligation of “v’chai bahem” does not require us to take no risks, but we may engage in “acceptable” risks.  Who determines what is considered an “acceptable” risk?

My initial response is that we must follow the dictates of the government regarding the pandemic.  The government will evaluate when the risks are minimal enough to allow the easing of restrictions and we have a halachic responsibility to follow governmental rules based on the Talmudic principle codified in our halachic codes of “dina d’malchuta dina hu” – the law of the land is the law.  What are our responsibilities beyond that?  Do we have a responsibility to adhere to Rabbinic or communal policies regarding social distancing and isolation beyond what the government requires?    Rav Asher Weiss released a video (here is the video in Hebrew and here is a short version in English) explaining that even if the Israeli Minister of Health eases some strictures on some social and business activity, the orthodox community should adhere to stricter standards.   Professor Chaim Saiman posted an article explaining why he thought that the government’s decision to relax standards may be based on different considerations than those used by halachic authorities.  He argued that governments may be willing to relax restrictions as long as they are confident that the healthcare system can handle all patients, whereas halacha is simply concerned about saving lives.  Will relaxing restrictions put more lives at risk or not?

Since we are dealing with risk assessment, why must we listen to our Rabbinic leaders?  I am asking this question as a Rabbi.  Rabbis generally provide guidance on halachic matters, but here we are dealing with risk assessment and maybe there are other quality of life or pikuach nefesh factors that have not been considered sufficiently, such as mental health complications, depression and suicide that may result from isolation and/or economic factors of keeping businesses closed.  Have all of these issues truly been considered?  What if a learned individual examines all of these factors and concludes differently than what the Rabbinic leaders are saying?  May he choose not to adhere to Rabbinic statements because he would not be disagreeing on halacha, just on the facts?

It seems to me that the requirement to adhere to principles of social distancing as far as shuls are concerned and maybe for other aspects of social distancing and isolation can be based on Hillel’s dictum in Avot 5:4 not to separate from the community.  Indeed, the Rambam rules in Hilchot Teshuvah 3:6 that one who separates from the community has no portion in the World to Come.  If the entire modern orthodox Jewish community preaches social distancing and isolation beyond what is mandated by the government, this principle may require someone to adhere to communal policy even if he disagrees with the facts that underlie the halacha.  Perhaps the halachic concept of Takanat Ha’kahal, or communal legislation, can also provide some basis to the requirement to follow the community standards in this regard.  In the tenth century, halachic authorities devoted much attention to the legal basis for a community’s power of legislation.  Rabbenu Gershom based this authority on the concept of “hefker beit din hefker,” that the court has the power to expropriate money.  Rabbenu Gershom broadened this authority to include communal enactments.  Perhaps when an entire community like our modern orthodox community issues a mandate forbidding certain behaviors, a Takanat Ha’Kahal of the sort may be created which binds members of the community to follow this mandate even if they disagree based on the facts.

Additionally, even if the government did not mandate certain behavior but the entire broader society was practicing that behavior and Jews were not practicing that behavior, then this could cause a Chillul Hashem, a desecration of God’s Name.  If, let’s say, the government no longer mandated but merely recommended a certain type of social distancing and isolation like don’t eat at restaurants, and American society followed this recommendation but our community did not, we might not violate “dina d’malchuta dina,” but we would likely violate the prohibition of Chillul Hashem.  If broader American society would see Rabbinical leaders and Torah scholars violating these generally accepted, recommended but not mandated guidelines, they would then likely say what is written in Masechet Yoma 86a, “Woe to so-and-so who studied Torah, woe to his father who taught him Torah, see how destructive are his deeds, and how ugly are his ways.”  This would constitute a tremendous Chillul Hashem.

As such, it seems to me that we must continue to practice social distancing and isolation as long as and to the extent that they are mandated by the government or they are accepted and practiced by the modern orthodox Jewish community or society as a whole.

That being said, I want to return to something that I mentioned earlier in this article.  What is guiding our Rabbinic and communal leaders to determine when and to what extent we can ease restrictions?  Is it simply when a vaccine is found?  Is it when the number of fatalities dip below a certain number?  Is it when the number of confirmed cases of those infected with the virus dip below a certain number?  There are pikuach nefesh considerations on one side of the equation, but there are also pikuach nefesh considerations on the other side of the equation.  What about mental health complications, depression and suicide that may result from isolation and/or economic factors of keeping businesses closed?   When do these latter risks outweigh the former risks?  Should quality of life come into play?

The Gemara in Nedarim 80b cites a Tannaitic debate in a Braita.  The Tanna Kamma, the first opinion, in the Braita states that if a spring belongs to the residents of a city and water is needed for their own lives and it was also needed for the lives of others, then the lives of the city inhabitants take precedence.  However, if the water was needed for their own laundry and for the lives of others, then the lives of others take precedence over their own laundry.  Rabbi Yose disagrees and says that even their own laundry needs take precedence over the lives of others and the question is why.  Perhaps Rabbi Yose argues that wearing unlaundered clothing could result in a lack of hygiene and potentially lead to a dangerous situation.  However, the Ran writes that Rabbi Yose’s reason is that “keivan d’v’meniat kevisah ika tza’ara tuva chayei nefesh hu” or the lack of laundry causes great distress and greatly diminishes the quality of life of the city’s inhabitants.  There is precedent here that perhaps severe quality of life considerations, and not only pikuach nefesh considerations, could play a factor in determining when to ease restrictions.  As an example, many children who are at-risk are suffering from the lack of a school structure and these restrictions may have long-term mental health effects on these children.

Let be clear.  I believe that we must continue to follow the law of the land and our communal policy and we must keep in mind Chillul Hashem considerations when deciding when to ease restrictions for the reasons that I have outlined above.  However, I have not seen a compelling analysis that provides a framework for evaluating all the risks to life and severe quality of life, both long-term and short-term, that should guide the decisions of our religious community.  I hope one is forthcoming in the near future.

About the Author
Jonathan Muskat is the Rabbi of the Young Israel of Oceanside.
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