NEW YORK (Dec. 2)
Can you sue your rabbi for not keeping a secret?
According to New York state’s highest civil legal authorities, rabbis are not liable for squealing — but the secret they divulge will be inadmissible as evidence in court.
The question arose in a recent ruling by New York’s Court of Appeals, which dismissed a suit by Chani Lightman of Long Island. The court ruled that the First Amendment prevents it from ruling in cases that would require an interpretation of religious law.
Lightman, who is now divorced, sued two Orthodox rabbis after they told her husband that she had acknowledged “seeing another man in a social setting” and discontinuing certain ritual practices, including going to the mikvah, or ritual bath.
The rabbis — Tzvi Flaum of Queens and David Weinberger of Lawrence, N.Y. — said they felt a religious obligation to notify Lightman’s husband, since Orthodox Jews are not supposed to have sexual relations if the wife has not gone to the mikvah.
In addition, the rabbis argued they did not know the information was secret, since other people had been present when Lightman spoke to them.
The case highlights how rabbis’ approach to secrets differs from priests’ — whose religion forbids them from divulging information shared in confession — and even from that of lawyers and therapists.
Jewish leaders say rabbis generally are discreet with personal information. However, like other professionals, rabbis feel compelled to divulge secret information if it poses a threat to other people, such as plans to commit a crime or hurt someone.
But unbeknownst to some congregants seeking counsel, many rabbis also feel they must share information that poses a religious problem for others.
Rabbi Joel Meyers, executive vice president of the Conservative movement’s Rabbinical Assembly, said he might divulge religious transgressions if they affected other people.
For example, if a congregant said he or she was bringing nonkosher food into a kosher kitchen or pretended to have had a Jewish divorce in order to remarry, Meyers would share the information with the people affected.
First, however, he would suggest the person come clean.
In the case of the secretly nonkosher kitchen, “I’d say, ‘You must say to your family what you’re doing. You’re causing your family religious harm,’ ” Meyers said.
Only if the person refused would Meyers approach the other family members.
Whether Lightman’s husband was indeed in religious danger from his wife’s behavior is up for debate. Lightman apparently told the rabbis she was not having sexual relations with her husband, so she was not causing him to violate commandments on family purity.
In addition, some have criticized the rabbis for divulging the information because Lightman’s husband later tried to use it against her in a custody dispute.
Esther Macner, a New York attorney who chairs the lawyers and judges division of Emunah of America, an Orthodox Zionist organization that until recently admitted only women, said she supports the court’s decision.
“Society cannot and should not regulate rabbis or any religious clergy, because they then get into the big problem of violating the separation of church and state,” Macner said.
However, she disapproves of the rabbis’ behavior in this case, since the fact that Lightman was not having sex with her husband meant she was not causing her husband to commit a transgression.
Blu Greenberg, president of the Jewish Orthodox Feminist Alliance, echoed Macner’s support for the courts but displeasure with the rabbis.
Lightman “had the misfortune to confide in two rabbis who had neither a sense of responsibility to her nor compassion to her, nor integrity to at least inform her of their intentions of what they were about to do,” Greenberg said.
The court ruling is a reminder that congregants should be careful and evaluate their rabbis’ integrity, rather than think they can fall back on the protection of the law, Macner said. Psychiatrists, lawyers and other professionals face legal sanctions if they violate confidentiality regulations.
“The next time you go to a rabbi to spill out your heart, know there isn’t any governmental regulation that will punish the rabbi for disclosing what you say,” Macner said.
However, she said, the decision is good because it means that rabbis “don’t have to be scared that if they follow what they think are dictates of halachah” or Jewish law, “they are going to be hit with a lawsuit.”
Rabbi Tzvi Blanchard, director of organizational development at CLAL: The National Jewish Center for Learning and Leadership, said “people are naively trusting with respect to rabbinic figures, and the only antidote to that is full disclosure of the ground rules.”
Lightman “probably felt, and many people think when speaking to a rabbi, that they’re speaking to someone on their side,” Blanchard said. “But that’s not true for all rabbis. These rabbis felt their moral role as community leaders overruled their responsibility to” Lightman.
Blanchard, who is an Orthodox rabbi but not a congregational one, said that part of the dilemma is that there is no consensus code of ethics for rabbis.
“When people come to talk to rabbis, they don’t know what the limits are,” he said. Rabbis could avoid some problems by stating up front what their approach to confidentiality is, he said.
Meyers said his policy has always been to say, “I will try to keep this confidential, but I’d like to hear what you’re going to tell me first.”
Despite these exceptional cases, Meyers said, “The public generally will find that clergy are quite good at keeping confidences.”
Rabbi Steven Dworken, executive vice president of Orthodoxy’s Rabbinical Council of America — which includes the rabbis in the Lightman case — said the two were not sharing information indiscriminately, and that he is pleased they were vindicated.
“Were they held culpable it would truly interfere with their roles as religious and moral leaders and teachers of Torah,” Dworken said. “What they did was within halachic parameters. They were trying to prevent a serious transgression within Judaism.”
Rabbi Paul Menitoff, executive vice president of the Reform movement’s Central Conference of American Rabbis, said he agreed with the ruling.
However, he expressed concern that it would “convey the wrong impression to rank-and-file members of congregations, that if they go to a rabbi they can’t count on him or her keeping what they say in a counseling relationship confidential.”