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Supreme Court Upholds “Jewish Clause” Disinheriting Inter-Married Children

posted by Brad Hirschfield

The Illinois Supreme Court unanimously upheld the legality of a so-called “Jewish Clause” in the will of Max Feinberg. The “Jewish Clause” disinherited any of Mr. Feinberg’s children or grandchildren who married non-Jews.
From this layman’s perspective, it seems like the court did absolutely the right thing as far as the law. By reversing a decision of a lower court which had previously decided that the “Jewish Clause” was unenforceable, they chose to keep religious matters where they belong, in the private domain of people’s individual lives. No judge should be making decisions about people’s religious preferences.
Of course, it still breaks my heart that people do this stuff to their kids. While I appreciate the pain which the decision to inter-marry caused the elder Feinberg, the legacy of hurt which his disinheriting caused is, in many ways, as Jewishsly problematic as the decision about which he was so upset. But this is America, where we protect individuals’ right to be foolish, right? Ultimately it beats the alternative of entangling civil courts in purely religious issues.
This case also highlights how one can be within the law and still a gross human being — what the Rabbis call a nahval b’reshut ha’torah.


The court did the right thing by upholding Feinberg’s right to disinherit his children and grandchildren, but in following the law, they created an opportunity for people to feel good about hurting others.
It’s not the court’s fault, but their ruling reminds us how satisfying the requirements of the law, be it classical Jewish or American civil, is not a guarantee of the highest ethical awareness or greatest human sensitivity. For those things, we sometimes need to go beyond the law. And while that cannot be demanded of anyone by an external authority, be it God or a court, it is our responsibility to demand it of ourselves.



  • jestrfyl

    I am sure many of these well-intentioned folks are glad that King David’s grandparents were an inter-married couple!
    They are certainly honoring the interest of the Pharisees. But the cost is incredible. No one benefits from such a narrow minded view of faith. Surely God wants us to teach and raise our children well. But that does not necessarily mean they have to march in step behind us.
    This may meet the letter of human law, but it surely violates the divine law of love.

  • RS

    we may not agree with the feinberg’s decisions. It was their money and it should be their choice to do with it what they wanted. If the interfaith couples are truly in love and I think they are, love conquers all and the money is not the end all.

  • marcia lewis

    the majority of Jews who marry non-Jews end up with kids who think they are “both”. impossible. or waiting till the kids grow up so they can pick a religion. both ideas are nuts Judaism is dying in the U.S. due to intermarriage. Jewish women dom’t want Jewish husbands but the “shikses” happily grab them. Jewish men don’t seem to want Jewish wives. the Orthodox Jews in america keep our religion alive.

  • http://www.pricklyportal.com Emily with the Kippah

    I am both the child of an inter-married couple and a proud 100% Jew. My mother is not Jewish. There, I said it. Allow me to say it again: MOM ISN’T JEWISH. But I am. I was raised in the faith, a raising that Mom actively supported and encouraged. Indeed, she loves the Jewish culture and feels connected to it on a deep and personal level, despite the fact that 13 years after she married my father she divorced him.
    The Rabbi’s mentioning of nahval b’reshut ha’torah brings to mind so many times when other Jews – people who claim to be “true” Jews – have point blank told me to shut my mouth, I’m not a real Jew. It hurts to remember, it hurts very much. Why people would take pride in such behavior is beyond me. It does nothing to advance their own Jewishness and everything to simply hurt me as a human being.
    And I vehemently disagree that “the Orthodox are saving the religion.” I do not see modern Orthodox Judaism as being the “truest” Judaism. As if being Jewish is a ladder to climb and the more you emulate Orthodox Judaism the “closer” you are to HaShem.
    Thanks Rabbi for writing articles that have helped me accept myself and take pride in myself even more.

  • Cully

    I think the Court did the right thing. If someone is (as they say) of sound mind and through their Last Will and Testament wishes to dis-inherit someone, then that wish must be respected. How sad though that Mr. Feinberg didn’t appreciate that his children chose Love over (his) money… Their Mother must have been a fine, good, and Loving woman. Love – isn’t that what it’s all about??

  • New Age Cowboy

    Very nice post Rabbi.

  • Mere_Christian

    The real shame is that this incident made it to court. Let alone the Supreme Court of the United States.

  • zvi weiss

    First of all to Emily –
    If your mother is not Jewish (and you did not
    convert), then you are NOT JEWISH. Just as if you moved
    to Canada and declared yourself a Canadian because you love
    Canada woudl not make you a Canadian citizen. All you are doing is
    fooling your self and — likely — causing lots of untold pain
    to future generations. Judaism is not a “feel-good” faith where you
    are Jewish because it feels good. It is a nationhood and rigorous.
    Claiming to be Jewish just because you feel like it (or because some
    upstart JEwish group “decided” that they could just change things)
    ultimately shows an ignorance of what Judaism means.
    Now, as to the article, I fail to understand why refusing to “fund”
    non-Jews is “gross” or wrong. This man was born a Jew and died a
    Jew and wanted to leave his legacy to HEALTHY JEWS — not to people who are
    spiritually suicidal. Note that he did not specify that they had to
    be Orthodox — all he specified is that they remain JEWS. Marrying
    a non-Jew (or someone who has had a worthless “quickie conversion”)
    means that there will NOT be a Jewish legacy. That is an act of treaon
    against the Jewish People. Why leave a legacy to such people?
    It is one thing to say that one must “keep open” the lines of communication
    while alive to “reach out” to those who are intermarried …
    It is quite another that one must leave his or her legacy to people
    who betray that person.

  • Dave

    1/ The Jewish people are not dying out because of intermarriage, due to the enormous fecundity of the Orthodox, especially the ultras.
    Google ‘Rachel Krishevsky’
    2/ If a person born and raised in Luxembourg, say, speaks English, celebrates all the American holidays, loves apple pie and baseball, knows all the lyrics to all the American patriotic songs, etc, etc, is that person an American?
    Probably not.
    Same thing goes with Jews. ‘Raising’ is irrelevant.

  • zvi weiss

    Again to Emily:
    By the way, this is not meant to be hurtful –
    It is a statement of fact. If you do not have a Jewish Mother,
    you are not Jewish. This is not a matter of telling anyone
    to shut up. It is a matter of facing reality.
    If you are so serious about being Jewish (and I agree
    that Orthodox Jews can be insensitive — but this does not
    change the facts)) then you have the option of conversion.
    LEarn what REAL Judasim is about — both the so-called
    ritual and legalities as well as the real ethical behavior.
    Make the promise that you will actually KEEP all of this.
    And, become a Proud member of the Jewish Nation.

  • Hope

    The man has a right to do want he wants with his money ( Jew or goy.)

  • Emily with the Kippah

    I knew my comment would bring out other comments like the ones above, but it’s ok. This article and others have made me brave enough not to deny my mother and to keep her in hiding. I love her too much to ever do that. People at the Sephardic Orthodox synagogue I attended last Shabbat also helped me be more courageous. [I do not currently affiliate with any 'denomination' I just like that synagogue for its warmth and openness] Thank you again Rabbi for helping me in this journey to have more courage!

  • Bonnie

    The Illinois Supreme Court also upheld the ideal of our Constitution, the separation of church and state. And as Hope said, the man had a right, albeit a purely selfish one, to do what he wanted with his estate.

  • Cully

    Zvi wrote: “you have the option of conversion”, Emily wrote: “MOM ISN’T JEWISH. But I am. I was raised in the faith, a raising that Mom actively supported and encouraged.” I take this to mean that her father was Jewish, and she was raised Jewish… so what does she have to convert to???

  • Sid S

    For Zvi: My father was Ashkanazic, mother is Sefardic. In those days, Mom wasn’t “considered” Jewish by some. Am I Jewish in your eyes? Real question, Do I Care what you think. Answer, No.
    Both of my siblings are “active Jews” yet one sugested that G-d does not exist. Is that sibling “Jewish”?
    There are many reasons why Judaism is dying. The Elitism of some Jews certainly is one.
    For Emily: If you believe in G-d, isn’t that enough for you? It is for Him.

  • Judith

    I agree with the supreme court’s finding, A person’s will should be carried out as the writer intended. Who is a Jew, I am a convert, 100 percent a Jew! I converted to Judaism not because of marriage but for my love of Judaism and a strange sense of Jewish identity that started as a child. If someone is not born into a Jewish family one must convert. The are some affiliations, Reform and Reconstructions that adhere to the conviction that patralineal lineage is valid and that the child doesn’t have to go through conversion. Who is a Jew. Some believe only the orthodox or Ultraorthodox are Jews. I don’t think G-D sit in judgement of what affiliation one belongs. My wish is we could stop all the infighting and accept each other as Jews. It does no good in keeping our people alive and vital, we should learn from each other instead of dismissing each other. Judith

  • Jordan Hirsch

    I think my friend the Rabbi is half correct. It can be hurtful that you can be excluded from your inheritance for making a personal decision to love freely, without regard to religious or national identity. And I certainly do not agree with the idea that one should use money or other material goods to cudgel his family into doing what he wants them to do, even in something so important as a religious legacy for his children, grandchildren, and great-grandchildren.
    But let’s also keep in mind that for this individual, love of his religious identity was something larger than himself, larger than any one individual, and that perhaps throwing it away, at least from his point of view, is an act of selfishness, and preserving it too is an act of love. I don’t agree necessarily with his method, but we have to find a better way to validate the grandfathers love as well.

  • Larry Lennhoff

    The court has to rule on the case before them, but I see rough waters ahead. What happens when the next will disinheriting someone for marrying a non-Jew comes up, and the person insists their partner is in fact Jewish – perhaps partrilineally, perhaps via J – for J, or perhaps simply by a conversion the person who made the will didn’t recognize? The court is certainly barred from taking a stand on the “Who is a Jew?” question.

  • Emily Rose

    The Supreme Court got it right.
    In regard to the issue of who is a Jew, I personally know two situations which sound illogical but are true. One was of a woman raised as a Catholic, CCD classes and all,identified as Catholic, but born to a Jewish mother. She married a Jew under a chuppah, no questions asked.
    The other is of a woman raised as a Jew, heavily identified as Jewish, observed Shabbat and all the holidays, would tell you that she was 100% Jewish if asked, but born to a non Jewish mother. Before she got married to a Jew, she was required to convert.
    This sounds like it makes no sense. After all, the practicing “Non Jew” knew more about Judaism and felt more Jewish than the practicing Catholic, born to a Jewish mother. In the end the practicing Catholic,(born of a Jewish mom) was not required to know any more about Judaism then she might have already known, in order to marry a Jew, but the practicing Jew (born of a non Jewish mom) had to study for more than a year, before converting and being allowed to marry.
    This needs to be changed. I understand that one should not be able to consider themselves Jewish because they just feel Jewish, but some consideration needs to be taken in to account for cases such as the above. The concept of “matrilineal blood lineage trumps all” is kind of absurd. It may have served a purpose in ancient times, but I do not understand what purpose it serves today with DNA testing available.
    Furthermore, I think at one time, Judaism used to patriarchal, in other words, you were the religion of your father. I’m not sure when it became matriarchal, but I know there was a change.

  • Lucy

    Great post, Rabbi.
    For Emily: I am one of those with a Jewish mother and a Christian father who was allowed to be Jewish automatically. My religous upbringing was a rather eclectic mix of Christian and Jewish thought. I have a pretty solid understanding of both Christian and Jewish theology (some college courses and independent reading gave me that) and to this day, I think I’d be pretty comfortable as a Unitarian. I am married to a Jewish man, we had a Jewish wedding, no questions asked. I know about Holidays and traditions, I make a mean honey cake and chocolate Hammentaschen, but I really don’t know Hebrew and I know many of my ideas are probably not so Kosher, even if my kitchen is! (It was a great way to make my husband go vegetarian, since I do not have the time to deal with all the dishes, etc.) I have always thought it was unfair that I was considered Jewish automatically, while someone in your place, with a Jewish father and all the knowledge I lack, was not. In fact, for me it is sort of embarassing. For what it is worth, I really wish that would change. I have argued about this with my husband, who identifies as Conservative and is fairly traditional. (Yes, I drive him nuts.) So, Emily, I am on your side!

  • Emily Rose

    Dear Lucy:
    FYI, I have two Jewish parents. My post was not about me. I really do know two such individuals. However, thanks for supporting my point!

  • Ana

    A question: It is my understancing that in Christianity a child of a mixed marriage becomes a Christian according to fathers religion. Is conversion into Christianity necessary when a child chooses fathers religion when he is not a Christian, but the mother is?

  • http://Yes Wendy

    All Christians must be baptized to call themselves a Christian, since baptism washes away original sin, therefore cleansing the soul to allow entry to heaven. Original sin, of course, is Eve’s having eaten the apple. A conversion by study is not necessary, but may be encouraged.
    I am a Jew by Choice, having been raised a Catholic.

  • windbender

    According to most of the Protestants I know, anyone can become a Christian on the spot, even if they are standing alone in a field, by offering the “sinners prayer” and avowing belief. One of the few areas of life where study courses are truly optional and may be completed after graduation.

  • Faith Defender

    Okay, how would you handle this one?
    My Uncle, who is Jewish, marries a Catholic woman, with their children raised as Catholic. But, if under Jewish law, they follow the Mother’s religion, they are Catholic, while under Christian rules, they follow the Father’s religion, so they would be considered Jewish.
    Which one takes priority?
    {This is why intermarriage eventually causes so much heartache, in my opinion}
    Actually, I have some other cousins whose grandparents had a similiar clause disinheriting them if they did not marry Jews..so I agree with the Grandfather in this case, and the Court’s ruling.

  • Emily with the Kippah

    Intermarriage would only cause heartache to those who cling to things that cause heartache.
    I know of people who were born to a Jewish mother who are not Jewish, and may in fact be ardent atheists, and resent the fact that people automatically consider them Jewish because a religious law they do not follow is being thrust upon them by people who think they know how their familial relationships should work better than the person in question. We don’t need any more self-hating Jews in the world. Let them not be Jewish. This is also a way it causes heartache.
    So in the end, the impression is left that Judaism is a religion that inherently causes heartache, even among those who aren’t active and willing participants.
    An above poster mentioned elitism. I think this perfectly sums up both the aversion many goyim AND many Jews have to the Jewish religion and the attitude I have greatly experienced in America.

  • Emily with the Kippah

    Intermarriage would only cause heartache to those who cling to things that cause heartache.
    I know of people who were born to a Jewish mother who are not Jewish, and may in fact be ardent atheists, and resent the fact that people automatically consider them Jewish because a religious law they do not follow is being thrust upon them by people who think they know how their familial relationships should work better than the person in question. We don’t need any more self-hating Jews in the world. Let them not be Jewish. This is also a way it causes heartache.
    So in the end, the impression is left that Judaism is a religion that inherently causes heartache, even among those who aren’t active and willing participants.
    An above poster mentioned elitism. I think this perfectly sums up both the aversion many goyim AND many Jews have to the Jewish religion and the attitude I have been exposed to in America.

  • Malka

    The real problem with the above “Jewish Clause” you have to have a definition of whose “Jewish”. The Bible in Deuteronomy states the Father determines the Jewishness of his children not the Mother. But in the the last 150 years that was changed by the Rabbi’s to the Mother determines the “Jewishness” of the children. For whatever reason this was done, I will follow what the Tanach says. This leads us back to the original question, what do you do when you have the parent that wasn’t born “Jewish” but by choice converts to “Judiasm”. Are they “Jewish” not according to this requirement it appears. This requirement in a “Will” is bogus. Though I agree that the Courts have no business deciding this issue. This should go to the “Jewish” Courts, hopefully they can decide this issue fairly.

  • MH

    On another message someone pointed out the potential problem if the descendant claimed she hadn’t married out. She would have put the court in a position of deciding if her spouse was a Jew or not. Since this is a religious question it would have violated the separation clause.

  • Judith

    After services today I was thinking about matralineal descent. A few friends and I were talking about this and we think it must have started with Abraham and Sarah. Abraham fathers Ishmael with Hagar, who is destined for the desert after Sarah and Abraham produce Issac who is a Jew, destined for a big test! It is interesting that the mother passes Judaism from one generation to the next especially where the Matriarch aren’t even acknowledged equally as the patriarchs are as the founders of Judaism. This has changed in the liturgy of the conservative e movement, although the prayer book offers 2 versions one inclusive and one exclusive of the matriarchs. Reform and Reconstructions include both without exception. It is also odd that until the last 50 years women had a very limited role in Jewish Ritual, lighting Shabbat candles and saying the blessing is/ was the only required ritual of communal practice, but women, our mother’s and foremothers are the ones who continue the Jewish lineage. Thoughtful over bagels and coffee and a bit of kugel!

  • Gavriella

    We follow the Reform tradition in our family. My daughter had a troubled early adulthood that included alcohol and drugs. She had a son 5 years ago by a man she later realized was heavy into drugs and separated from him. She got into recovery 4 years ago, and I had custody of my grandson until last August, because the courts had her jumping through hoops before giving him back, though she visited often. A year ago she married a nice man she’d dated for 3 years, who identifies as an assimilated Jew and who treats my grand as his own child. Sadly, they live in near-poverty and can’t afford temple membership even under the most generous reduced fees, but I have been taking my grandson to services since he’s two years old.
    The father, claiming to have cleaned up 6 months ago, applied for and was granted (by the caseworker) alternate-weekend visits with the boy last month, for the avowed purpose of taking him to church and having him baptized over my daughter’s strenuous protests and even though my daughter has custody. He was also told that he could go to family court for total custody so he could raise him Christian.
    He has done nothing to earn custody. I fear my only grandchild will grow up an anti-semite if raised by a fanatic father who substituted religion for drugs. Grandparents have no rights in Florida.
    My grandson is confused because his father tells him he must be a Christian and go to Sunday school at a church that is openly hostile to Jews. But my grand also enjoys the little I’ve taught him of Judaism, including lighting candles and saying the Motzi, and hearing the stories I read to him when he’s with me. While I don’t usually approve of contradicting parents, I have told my grandson that he can absolutely be Jewish if he wants to be, no matter what anyone else says, and he appears to be comforted by that, but I fear I am fighting a losing battle in the long run.
    I know young men and women today think that it’s okay to marry out and that religion doesn’t matter, but that changes when children come along. They don’t realize their actions could have far-reaching and possibly tragic consequences.
    Gavriella

  • MH

    Gavriella, sorry to hear about your daughter’s problems and hope it works out for the best.
    The out come of intermarriage greatly depends upon the level religiosity of the partners involved. My spouse and I are technically intermarried, but neither of us is religious so it is a non-issue. We have children and that didn’t change things either.

  • CIndy

    Gavriella, Hopefully this will allow your grandson to understand the absolute importance of not marrying out. I know this isn’t very comforting right now. The important thing for you to do is what you are doing: keep reinforcing his identity and keep that associated with happy times.
    I would suggest you reach out to national organizations that deal with issues of identity too. Perhaps NJOP?
    I offer you my best wishes and remember that this too is in HaShem’s plan!

  • Gerald Goldberg

    WHAT’S A HEALTHY JEW?
    SANHEDRIN 58b
    A non Jew can marry his daughter and mother according to the Talmud:
    R. Huna said: A heathen may marry his daughter. But should you ask, If so, why did not Adam marry his daughter? — In order that Cain might marry his sister, that the world might be built up by grace. Others give this version: R. Huna said: A heathen may not marry his daughter; the proof being that Adam did not marry his daughter. But that proof is fallacious: The reason was that Cain should marry his sister, so that the world should be built up by [Adam's] grace.
    R. Hisda said: A heathen slave [owned by a Jew] may marry his daughter and his mother, for he has lost the status of a heathen, but has not yet attained that of a Jew.14 When R. Dimi came,15 he said in the name of R. Eleazar in the name of R. Hanina: A heathen who allotted a bondwoman to his slave [for concubinage] and then took her for himself is executed on her account. From when [is she regarded as the particular concubine of that slave]? — R. Nahman said: When she is referred to as so and so’s mistress.16 When is she free again [to others]? — R. Huna said: From the time that she goes bareheaded in the streets.17
    R. Eleazar said in R. Hanina’s name: If a heathen had an unnatural connection with his wife, he incurs guilt; for it is written, and he shall cleave, which excludes unnatural intercourse.18 Raba objected: Is there anything for which a Jew is not punishable and a heathen is?19 But Raba said thus: A heathen who violates his neighbour’s wife unnaturally is free from punishment — Why so? — [Scripture saith:] To his wife, but not to his neighbour’s; and he shall cleave, which excludes unnatural intercourse.20

  • DR..

    This is why the Jews have been persecuted over the centuries. Clannish, cultish and eugenic behavior. Given that Jews have, until recently, lived as mostly minorities in host countries this bred suspicion and animosity amongst the majority who attack the Jews out of fear and ignorance. This led to Jews becoming more clannish, thus continuing the cycle. It’s pathetic really.

  • Dan O.

    I don’t know if Emily still posts here, this happened a long time ago, but she said:
    “I know of people who were born to a Jewish mother who are not Jewish, and may in fact be ardent atheists, and resent the fact that people automatically consider them Jewish because a religious law they do not follow is being thrust upon them by people who think they know how their familial relationships should work better than the person in question. We don’t need any more self-hating Jews in the world.”
    Being this sort of person, I’ll answer. I’ve certainly found it annoying when people assume I’m subject to certain laws, obligations, or privileges by having a Jewish mother. But that I don’t accept jurisdiction (if you’ll excuse the idiom) wouldn’t make me hate Jews, nor would another’s claim that I am Jewish make me hate myself. What does, frankly, stoke my ire is the claim that I do not accept jurisdiction could somehow makes me self-hating. I’ve heard that before, and suggested the person who said it should go climb a tree.
    I do not mean to suggest that this is what you mean (because I doubt you did), I’m just clarifying.

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