One doesn’t need to be an intellectual property lawyer to know that trademarks are valuable commodities. They signal to consumers the source or origin of those goods or services displaying the mark. Trademarks play a critical role in commerce: they protect the trademark owner’s goodwill. Trademark law safeguards this goodwill, and protects against consumer confusion, by prohibiting the use of another’s trademark on similar goods or services.
But sometimes, once-effective trademarks lose their trademark status because, for one reason or another, they lose their distinctive quality and are no longer able to serve as a signal to consumers. Sometimes this is even the fault of the trademark owner. Years ago, the Otis Elevator Company owned a trademark registration for “Escalator,” but the company used the word as the name of the product itself, rather than as the indicator of the origin of the product. As a result, the mark lost its capacity to designate its source of origin and became generic.
So what does all this have to do with Conservative Judaism?
Recently, four major players in the movement wrote an Opinion column for JTA titled “The Conservative movement can, and should, welcome the intermarried.” Of course, Conservative Judaism is not a registered trademark, but it clearly represents a “brand” of Judaism that once upon a time had a distinctive quality. So consumers glancing at the title of this article ought to be immediately confused, especially if they know that Conservative rabbis are not allowed to perform intermarriages, and that the Conservative movement claims to adhere to halacha, Jewish law.
The op-ed actually goes on to reaffirm the movement’s prohibition against its rabbis officiating at intermarriages and even speaks approvingly of conversion as an option. But in the penultimate paragraph of the piece, the authors discuss welcoming the intermarried with “equally open arms.” They advocate “joyously” including these couples in the lives of Conservative congregations and organizations, including worship. Finally, they promise to find “ways to celebrate” these marriages that honor the non-Jewish spouse’s “choice not to merge their identity with the people of Israel.” How? “By being present as pastors before the wedding, as rabbinic guides and companions after the wedding, and as loving friends during the wedding period.”
The Reform movement has done a wonderful job of embracing intermarried couples. Its success is likely a factor in the rise of Jewish identification among millennial children of intermarriage as compared to prior generations. I applaud Reform’s efforts but cannot help but wonder what the Conservative movement hopes to gain with this explicit directive of equal hospitality.
The op-ed begs the question of what does “equally open arms” mean in the context of Conservative synagogues welcoming intermarried couples? Is such equal hospitality even possible in Conservative synagogues if they are going to continue to take Jewish tradition seriously? Will non-Jews be allowed to have honors on the bima and actively participate in the services to the same extent as Jews?
Should the norm in Conservative synagogues be to wish a public “mazel tov” to Jewish as well as interfaith couples on their engagements and marriages? Should Conservative rabbis now be expected to allow an aufruf ceremony for interfaith couples prior to the wedding? And if the majority of Conservative synagogues will answer “yes” to all these questions, will those Conservative rabbis who are uncomfortable with adopting these practices find themselves unemployed? And of course, there is the strong likelihood that the most traditional core members of these synagogues will go elsewhere, leaving fewer knowledgeable and observant Jews in these communities.
The 2013 Pew Study of the American Jewish community shows that only 20 percent of intermarried couples are raising their children as Jewish by religion. I suspect that for the majority of this group, a Reform synagogue still will be a much better fit. It is difficult to understand why these couples would choose a Conservative synagogue over a Reform one. Therefore, it is doubtful if most Conservative synagogues will see a significant membership increase of younger intermarried families as a result of such equal hospitality.
There was a time when Conservative Judaism had a distinct message for its adherents, and part of that message involved a strong preference for in-marriage. Even with more liberal applications of halacha from time to time, the movement managed to build up considerable goodwill so that it could attract consumers interested in traditional worship and practice that was still distinct from both Orthodoxy and Reform. I fear, though, that this latest communication from its leadership will bring Conservative Judaism closer to losing much of its goodwill, confusing its current consumers and ultimately suffering the same fate as the Otis Elevator Company when it lost a valuable asset.
Roberta Rosenthal Kwall is a professor at DePaul University College of Law and the author of “The Myth of the Cultural Jew: Culture and Law in Jewish Tradition” (Oxford University Press, 2015). She is working on a book about transmitting Jewish tradition in a diverse world.
