At times it seems that the Orthodox rabbinate has little more to contribute to the world of Jewish ideas than proclamations declaring who is, or more precisely who is not, "Orthodox." Consider a few recent examples. This past summer Rabbi Yosef Kanefsky wrote a blog post (since removed) discussing his aversion to reciting the daily blessing shelo asani isha, thanking God for not having made him a woman. In response, Rabbi Dov Fischer castigated R. Kanefsky and the community he represents as, "propagating their views without being subjected to scrutiny and critique by those committed to a Mesorah-driven frumkeit" [emphasis added]. In other words, R. Kanefsky's halakhic opinion is not part of the genuine "mesorah/tradition," which R. Fischer apparently does possess. Another writer echoes R. Fischer sentiment more explicitly, "In my view this not only takes Rabbi Kanefsky out of the realm of Orthodoxy, it firmly puts him into the realm of Conservative Judaism."
Or consider the controversy surrounding women rabbis. Last year Rabbi Avi Weiss sparked a larger controversy by ordaining Sara Hurwitz as an Orthodox rabbinic figure, regardless of the exact title. This action also elicited objections of being outside the definition of "Orthodox." The Moetzes Gedolei HaTorah of America decreed, "These developments represent a radical and dangerous departure from Jewish tradition and the mesoras haTorah, and must be condemned in the strongest terms. Any congregation with a woman in a rabbinical position of any sort cannot be considered Orthodox." Rabbi Avi Shafran similarly opined, "Women Rabbis Outside Orthodoxy."
And most recently, in response to the Orthodox ordained Rabbi Steve Greenberg officiating a same-sex wedding, over one hundred rabbis signed a proclamation intending to "correct the false impression that an Orthodox-approved same-gender wedding took place," stating, "By definition, a union that is not sanctioned by Torah law is not an Orthodox wedding, and by definition a person who conducts such a ceremony is not an Orthodox rabbi."
The point here is not to discuss the substance of these issues (though I have done so here, here, and here respectively) but the significance and perceived necessity of such exclusionary proclamations. After all, significantly worse infractions of Jewish law and tradition by more prominent rabbis and institutions have not merited the similar disqualification of being "non-Orthodox."
Instances of sexual abuse in the Orthodox world are not infrequent. Brooklyn D.A. Charles Hynes' office reports 89 related arrests, though this exact number may be inflated. Still, there have been several publicized accounts and allegations of sexual abuse in Orthodox youth institutions worldwide the most infamous ones being Yehuda Kolko and Baruch Lanner. Amid various allegations of sexual misconduct, Leib Tropper resigned from his Eternal Jewish Family organization, Mordechai Tendler was expelled from the Rabbinical Council of America and later suspended by his congregation. The list unfortunately goes on.
Yet despite Rabbis engaging in sexual misconduct, there has been no declaration that those guilty are not to be considered "Orthodox." Some rabbis who either ignored or concealed such abuse could even be considered gedolim. Yet while Rabbi Steve Greenberg has been deemed "non-Orthodox" for officiating a halakhically illegal wedding, there has been no such declarations of "non-Orthodox" for Rabbis who in their abuse of students violate prohibitions of homosexual activity (in addition to damage caused by pedophelia).
There other crimes and halakhic violations committed by Jewish leaders or their institutions. In July 2009, forty four people were arrested in Operation Big Rig 3 including prominent Jewish leaders in the Syrian community for crimes including money laundering, political corruption, and organ trafficking. When these or other such scandals break, there is no similar call from Jewish leaders that such perpetrators and sanctioning organizations are "non-Orthodox." Even the esteemed leaders of the aforementioned Moetzes Gedolei HaTorah Of America are not immune to scandal. In 1986, R. Dovid Feinstein's yeshiva Mesivtha Tifereth Jerusalem was involved in its own money laundering scandal. To my knowledge, no one claimed that MTJ or its leaders were "non-Orthodox" despite public violations of Jewish law.
To be sure, no organization would define itself by these violations of Halakhah and no rabbi or institution would state publicly that financial or sexual crimes are permitted and justified, let alone defining characteristics of their religious system. Unlike the ritual innovations cited earlier, no one has stated that molestation is Orthodox, and thus would not warrant the same type of exclusionary condemnation - though perhaps such a declaration and social ostracization may help stem abuse. However there are in fact other crimes committed by Orthodox Jews which are routinely done in the name of Orthodox Judaism, if not with the blessing and encouragement of prominent rabbinic figures.
In Israel, Charedim have repeatedly vandalized property in the name of their religion. One bookstore in Me'ah Shearim was forced to submit to the thuggish tactics of the self-appointed modesty police. Religious conflicts have also erupted in violence, again in the name of their religious beliefs. There have also been reports of physical assaults against women. One woman was recently attacked on a bus. In 2008 a woman was brutally attacked from a "modesty squad" which "has declared a crusade against violations of Halachic law and what it views as 'unchaste' behavior." Perhaps the most extreme example of advocating religiously sanctioned violence is Rabbi Dov Lior who wrote a book in which he legitimized killing non Jews based on his understanding of Jewish law. In all these instances of Chareidi violence and intimidation in the name of Judaism, there have been no calls to deem these halakhic violators, their rabbinic leadership, or their supporting institutions "non-Orthodox." If anything, these people are called "ultra-Orthodox," implying that their brand of Judaism is quantifiably greater than others, regardless of whether or not they act in accordance with halakhah.
And so the question remains why are only some actions elicit the "non-Orthodox" label. Let us assume that the term "non-Orthodox" will be used when there is the greatest threat posed to Orthodox Judaism.
But what then counts as the "greatest threat" and how would this be defined? Clearly it is not a matter of a transgression's prevalence. There are more incidents of fraud, corruption, and sexual impropriety in the Orthodox community than there are rabbis who make significant unprecedented changes to Jewish ritual practice. If traditional Torah observance is the goal then it would seem logical to attack the most common if not systemic violations Jewish law as "non-Orthodox" than relatively isolated incidents.
Nor are the threats defined by their halakhic severity. Not saying shelo asani isha is at worst a passive neglect of a commandment mandated by the rabbinic sages, but according to the Shulhan Aruch, stealing from non-Jews is an active violation of biblical law (C.M. 348:2). Officiating a same-sex wedding violates a biblical prohibition, whereas a rabbi raping a male student would violate the famed "abomination" of Leviticus 18:22. Even Rabbi Shafran concedes that ordaining women rabbis does not violate halakhah, as opposed to causing damage to others (B. Bava Batra 22b). If observance of Torah is the goal of Orthodox Judaism than ostensibly it ought to be less concerned with permitted variations within Halakhah then with outright violations of halakhah.
The real reason for the apparent ideological inconsistency is that contrary to popular belief, "Orthodox Judaism" is not a religious designation based on Torah but a social one embellished with religious rhetoric. Certain halakhic violations may be tolerated as "Orthodox" if they do not challenge the social system of obedience, but any challenge to the Orthodox establishment can be considered heretical - even if they do not actually violate Jewish law. Note that the direction of "non-Orthodox" charges goes only in the direction of right to left. That is, only the so-called "liberal" Jews are branded "non-Orthodox," but halakhically deviant extremists on the other end of the religious spectrum are still within the fold because despite their violations of Jewish law, they do not threaten the socio-religous system based on submission to authority.
Thus the controversies of "non-Orthodox" are nothing more than a territorial claim of the "Orthodox" franchise, and which side gets to portray itself as religiously authentic. By the same token, any claim that a person or position is "non-Orthodox" may be correct insofar as they challenge the religious establishment's status quo. It is a descriptive statement of a social reality. Based on the subjective social norms of Orthodox Judaism, one who does not keep kosher may not be considered Orthodox, as opposed to a child molester who follows the overt norms of religious speech, dress, and observance. The religion of Orthodox Judaism is best defined not in terms of adherance to Torah, but tautalogically, adherence to Orthodox Judaism itself - whatever that might happen to mean.
This is the true point of confusion regarding Orthodox Judaism. The popular understanding is that Orthodox Jews are somehow "more observant" than non-Orthodox Jews, and for the most part this is true - especially as it pertains to observing rituals. But it clearly does not mean that the practice of Orthodox Jews is entirely consistent with Jewish law. I would argue that whether or not one is classified as "Orthodox" is irrelevant according to Jewish law. Halakhah mandates performing what God and the Rabbinic Sages commanded and refrain from their prohibitions, in other words, being a "Shomer Torah" - meaning to keep the written and oral laws of Judaism. For if we assume the purpose of Judaism is to fulfill God's will, then it would seem God cares more about adhering to his commandments than to fitting in with an "Orthodox" society.
To conclude, I am not justifying or defending any of the actions cited above which were deemed "non-Orthodox," nor am I saying that Orthodox Judaism is an intrinsically corrupt enterprise. What I am arguing is that through the selective outrage and silence of others, we can identify the priorities of those who feel the need to exclude others as "non-Orthodox." Even if we do not apply the principle of shetikah ke'hoda'ah, equating silence as tacit consent, where people choose to fight their battles is as revealing of their priorities as the arguments themselves. From my perspective, I have noticed considerably more outrage directed against observant committed Jews who innovate within the bounds of Jewish law, though differently than to what others are accustomed, than there is against the social crimes listed above. I see Orthodox Judaism more concerned with protecting its brand and reputation than it is with enforcing the Torah which it claims to adhere. It is a matter of priorities, and in this case the priorities of the Orthodox Jewish world are not primarily defined or determined by the Torah.
For those who are committed to being a shomer Torah, I leave you with the following thought. If women rabbis or omitting a blessing are greater threats to Orthodox Judaism, and thus more worthy of collective outrage than are theft, violence, corruption, and abuse, then perhaps the Orthodox society has outlived its halakhic usefulness.