First, I thank the CLR for offering its space for an extended discussion of what I think is a critically important issue to many synagogues in America: the freedom to select and hire the rabbi they want. I confess, however, that this is not a terribly complicated or difficult legal issue. America’s rabbis implement rules that are squarely illegal and are well outside any reasonable First Amendment protection.
Let me briefly describe the organization of America’s Jewish denominations. Synagogues are independent congregations, governed like any independent nonprofit and like Baptist, Quaker, or other congregational churches. synagogues hire rabbis just as they hire secretaries, and they pay a voluntary dues to national associations in affiliating with particular movements. When a synagogue wants to hire a rabbi, however, it confronts a tightly organized labor market. Individual rabbis are prohibited from seeking employment independently, and instead are required to apply only for jobs through their professional associations. If they act independently, they are expelled from their associations. Meanwhile, congregations seeking to hire a rabbi must enlist exclusively through the hiring processes sponsored by the rabbinical associations and can only interview the individuals the association sends their way. I have written about this system in greater detail here and here.
By organizing their individual members, the rabbinic associations are able to leverage their collective power against individual congregations. This strategy among professionals is nothing new. The American Medical Association has a very checkered past of instituting similar practices, and until federal antitrust officials intervened had expelled any individual member who accepted employment or payment from early HMOs. Several Bar Associations considered it “unethical” to charge low prices for certain rudimentary services. Associations of professional engineers prohibited negotiations on price, associations of dentists prohibited its members from working constructive,y with insurers and mother professionals, and the list goes on. Three similarities persist throughout this history: first, that the professionals expelled members who misbehaved, thereby enabling the association to leverage the entire market of its professional members; second, the association used thus leverage to exploit patients, purchasers of legal services, and other consumers; and third, courts and antitrust enforcers concluded that these practices violated the Sherman Act.
The rabbis are no different. Their collective dominance allows them to pursue full-employment policies, extract higher wages than other clergy, and stifle innovation and entry from would-be entrants. America’s synagogues suffer as a result. Synagogues are contracting, unable to gather the financial resources necessary to sustain themselves; and American Judaism remains ossified in organizational structures that may have made sense in the 1950s but currently are unable to address contemporary needs. These are the classic harms from a cartel.
So, the practices are familiar and the consequences are predictable. This is precisely the conduct the Sherman Act is designed to prohibit. That also means the solution is easy too.