The Parah-dox and Orthodox Ethics

by Rabbi Aryeh Klapper

The Talmud on Yoma 14a records a dispute between Rabbi Akiva and the Sages about the meaning of the opening phrase of Bamidbar Chapter 19, verse 19:

והזה הטהור על הטמא

“And the pure will sprinkle on the impure”

According to the Sages, this means that Red Heifer Ash-water loses its spiritual and halakhic potency on something which is incapable of becoming impure.

According to Rabbi Akiva, it means that sprinkling Red Heifer Ash-water on a tamei person makes them tahor, but the person sprinkling becomes tamei.

The Rabbis object to Rabbi Akiva’s argument – isn’t this needlessly paradoxical, they ask?  Even if your reading makes sense in the text, shouldn’t we prefer an interpretation that fits with reason?

Rabbi Akiva’s response is: ABSOLUTELY NOT.  This detail of the law, he says, is what drove King Solomon to confess in Kohelet 7:23

אמרתי אחכמה והיא רחוקה ממני

“I said: “I will become wise”, but this goal remains distant for me.”

This is what Rabbi Soloveitchik zt”l described as a “gesture of surrender”, a humble and noble willingness to acknowledge that “Because your thoughts are not My thoughts, and your ways are not My ways, declared Hashem.  As the heavens rise above the earth, so too My ways rise above your ways, and My thoughts above your thoughts”.   Ultimately Divine wisdom cannot be fully comprehended by human intellect.

BUT: Does that mean we shouldn’t try?

Put differently:  Is it better to have thought and lost, or never to have thought at all?

For some people, Rabbi Akiva’s embrace of irrationality is the paradigm for our relationship to mitzvoth.  We are best off not asking “why” questions about mitzvoth; ours not to make reply, but simply to follow G-d’s orders.

But for others, Rabbi Akiva’s understanding of this verse is an exception.   One law is immune to reason, to remind us of the limits of human intellect.  But with that reminder in hand, we must try our best to understand everything else using the minds that Hashem gave us.

Or maybe Rabbi Akiva is simply wrong.  The Halakhah follows the Sages against Rabbi Akiva; there is no reason to interpret this verse as generating an irrational law when an alternate explanation can be found.

I remember my excitement when I first realized that this third position was possible within the tradition, that there were great rabbis who believed that we should believe that all mitzvoth were comprehensible.  It came not from Rambam – my high school strongly discouraged me from reading the Guide for the Perplexed – but from the introduction of the great medieval parshan Rabbi David Kimchi, known as RADAK, to his commentary on Nakh.

אין צריך לומר התורה והמצוה שהם בנויות על דרך השכל

כי גם החוקים אשר נאמר עליהם כי אין להם טעם

כן הוא שאין להם טעם נראה לרוב בני אדם

אבל החכם המתבונן בהם ימצא טעמם ברור ומבואר

It goes without saying regarding Torah and mitzvoth that they are built on the ways of the intellect

as even the chukim, about which it is said that they have no rationale

It is true that they have no rationale which is apparent to most people

But the sage who meditates on them will find their rationales clear and explained

Even the chukim, Radak says – even the Red Heifer, which is described as THE chok of the Torah – makes sense to philosophers.  NOTHING about Torah law is in principle beyond human comprehension.

This was extremely attractive to me as a teenager.  But the problem with this position, as my high school teachers knew, is that:

The belief that nothing about Torah is utterly incomprehensible easily slides into the belief that we already comprehend everything in Torah.

The belief that we comprehend everything leads us to identify Torah with our own understanding of Torah.

The identification of Torah with our understanding of Torah means that we attribute our own errors to G-d.  When times change, so that our rationales for mitzvot no longer seem reasonable, we take that as evidence against the Torah, rather than as evidence that we have misunderstood Torah.

But the first position, the extreme version of Rabbi Akiva, can send us sliding down its own slippery slope:

The belief that nothing about Torah is ultimately comprehensible easily slides into the belief that we should not use ethics to evaluate our interpretations of Torah.

The belief that Torah interpretations need not be ethical leads us to accept interpretations that make Halakhah irrelevant, immoral or even cruel.

For example: some years ago, the Summer Beit Midrash studied the laws regarding the halakhic status of the deaf who also cannot speak audibly.  The Talmud categorizes deaf-mutes as not bnei and bnot mitzvah, as incapable of halakhic responsibility.  In the late 19th century – think Helen Keller – it became clear that deaf children could be fully educated, and that deaf adults could be fully competent even if they spoke Sign rather than verbalizing.

For some rabbis, this made it obvious that their halakhic status had changed.  We know, they argued, why the Talmud declared deaf-mutes to be exempt from mitzvot – it was because their minds had not properly developed.  Reality has changed, and it would distort Torah if halakhah did not take this new reality into account.

For other rabbis, our capacity to educate the deaf instead proves that their halakhic exclusion was not based on their mental incompetence, but rather is simply a gezeirat hakatuv, an incomprehensible (and therefore unchangeable) Divine decree.

I much prefer the middle position, the moderate understanding of Rabbi Akiva.  We should not be afraid to admit that some mitzvot are beyond our comprehension; but we should also not be afraid to admit that some halakhot are perfectly within our comprehension.

Jews should not glory in incomprehensibility, and obey the absurd with greater joy than the reasonable. We should instead strive to rationalize when we can do so with sincerity and integrity.  At the same time, we need to recognize that in every generation there will be some mitzvot – often different than those considered chukim in earlier generations – that we cannot rationalize with sincerity and integrity, and which we must nonetheless obey.

I wrote the following rationalization as an in-shul introduction to the leining of Parshat Chukkat 2015.

Why is the ritual of the Red Heifer in Sefer Bamidbar, rather than together with other priestly rituals in Sefer Vayikra?   The simplest answer is that our parshah is suffused with death.  Miriam dies; Aharon dies; Mosheh is sentenced to die in exile; the people ask repeatedly “Why have you taken us out of Egypt to die in the desert?”; and many of them in fact die at the hands of fiery snakes.  The Rabbis like to say that G-d often sends the refuah before the Makkah, the cure before the disease.  So here He gave Bnei Yisroel the laws of the Parah Adumah just before we had to deal with many crushing deaths.

How does this ritual help us deal with death?  My dear friend Rabbi Elisha Anscelovits points out that the ashes were sprinkled on the third and seventh days of shiva.  In the midst of mourning, G-d reminds us that we have responsibilities; that while our grief is justified, it cannot define us permanently or absolutely.  But the ashes cannot be self-sprinkled; to emerge whole, we need the help of others.

This is the deepest meaning of the paradox of the parah adumah, in which the sprinkler becomes tamei while the sprinkler becomes tahor – one person willingly becomes tamei so that others can become tahor.  The ritual reminds us that there are so many powerful areas of life where we are not self-sufficient, where we cannot bootstrap ourselves out of our ruts – we need our family, our friends, our community, and sometimes the human community.  Once we recognize our own needs, we will then try to be the helpers our family, friends, community and fellow humans need.

In the past week, the human religious community of the United States was frayed by the shocking racist murders in Charleston.  In response, a wide spectrum of Jewish organizations has called for this Shabbat to be a “Shabbat of Unity” as a statement of sympathy for the African-American community and as a protest against racism and discrimination. The RCA and the Orthodox Union have joined this call in the spirit of the Rav zikhrono livrakhah’’s call for human cooperation across religious boundaries on social and political issues.

May this be the beginning of a much deeper commitment by the Orthodox community to that spirit and that call.

Let’s make it so.

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A Look of Tumat Met

This week’s Alumni Dvar Torah is by Rabbi Jared Anstandig

Regarding the Mitzvah of the פרה אדומה, the Torah states, “זֹאת חֻקַּת הַתּוֹרָה אֲשֶׁר־צִוָּה ה’ לֵאמֹר.”  On this Pasuk, רש”י draws attention to the תורה’s usage of the term “חוקה,”

לְפִי שֶׁהַשָּׂטָן וְאֻמּוֹת הָעוֹלָם מוֹנִין אֶת יִשְׂרָאֵל, לוֹמַר מָה הַמִּצְוָה הַזֹּאת וּמַה טַּעַם יֵשׁ בָּהּ? לְפִיכָךְ כָּתַב בָּהּ חֻקָּה — גְּזֵרָה הִיא מִלְּפָנַי, אֵין לְךָ רְשׁוּת לְהַרְהֵר אַחֲרֶיהָ.

Because Satan and the nations of the world taunt Israel, saying, “What is this command and what reason is there for it”, on this account it (Scripture) writes (uses) the term חקה about it, implying: It is an enactment from before Me; you have no right to criticize it.

The traditional approach to the פרה אדומה aligns with רש״י’s comment, and so Judaism takes the פרה אדומה as the quintessential חוק, a law which we will never be able to fully understand. The mystery of פרה אדומה notwithstanding, it is worth exploring the issue that פרה אדומה resolves, namely טומאת מת.

The deceased human being is the highest level of טומאה that exists: in the language of רש”י in this week’s parsha, a corpse is an אבי אבות הטומאה.  This טומאה requires a specific process, the פרה אדומה, in order to become טהור again.

There are three main ways a person becomes טמא from a מת – touching a corpse, carrying a corpse, or being in the same room or above a corpse.  Being in same room (or tent) or above the corpse is known as טומאת אהל.

The Gemara in .יבמות דף סא addresses who can transmit טומאת אהל:

ר”ש בן יוחאי אומר: קברי עובדי כוכבים אינן מטמאין באהל שנא’ (יחזקאל לד, לא) “ואתן צאני צאן מרעיתי אדם אתם” אתם קרויין “אדם,” ואין העובדי כוכבים קרויין “אדם.”

The graves of gentiles do not render items impure through a tent, as it is stated: “And you My sheep, the sheep of My pasture, are men [adam]” (Ezekiel 34:31), from which it is derived that you, the Jewish people, are called men [adam] but gentiles are not called men [adam].

As evidenced from the continuation of the Gemara, רשב״י’s explanation draws on the opening of the section that deals with טומאת מת –i “אדם כי ימות באהל,” “when a man dies in a tent.”  In this context, “a man,” רשב”י argues, refers to a Jewish body, to the exclusion of non-Jews.

Along these lines, בבא מציעא קיד א-ב tells the following story:

אשכחיה רבה בר אבוה לאליהו דקאי בבית הקברות של עובדי כוכבים… אמר ליה לאו כהן הוא מר מאי טעמא קאי מר בבית הקברות א”ל לא מתני מר טהרות דתניא ר”ש בן יוחי אומר קבריהן של עובדי כוכבים אין מטמאין שנאמר (יחזקאל לד, לא) ואתן צאני צאן מרעיתי אדם אתם אתם קרויין אדם ואין עובדי כוכבים קרויין אדם

The Gemara relates: Rabba bar Avuh found Elijah standing in a graveyard of gentiles… he said to him: Is not the Master a priest?[1] What is the reason that the Master is standing in a cemetery? Elijah said to him: Has the Master not studied the mishnaic order of Teharot? As it is taught in a baraita: Rabbi Shimon ben Yoḥai says that the graves of gentiles do not render one impure, as it is stated: “And you, My sheep, the sheep of My pasture, are man” (Ezekiel 34:31), which teaches that you, i.e., the Jewish people, are called “man,” but gentiles are not called “man.”

It appears from this Gemara that אליהו himself subscribes to רשב”י’s opinion, arguing that he may stand in a non-Jewish cemetery since there is no concern of טומאת האהל from the non-Jewish bodies therein.

In practice, רמב”ם פרק א’ מהלכות טומאת מת הלכה יג follows the opinion of רשב”י:

וְאֵין הָעַכּוּ”ם מְטַמֵּא בְּאֹהֶל… וְכֵן הָעַכּוּ”ם אֵינוֹ נַעֲשֶׂה טְמֵא מֵת אֶלָּא עַכּוּ”ם שֶׁנָּגַע בְּמֵת אוֹ נְשָׂאוֹ אוֹ הֶאֱהִיל עָלָיו הֲרֵי הוּא כְּמִי שֶׁלֹּא נָגַע.

A non-Jew cannot transmit טומאה through a tent… And, likewise, a non-Jew cannot become impure from a dead body.  Rather, a non-Jew that touches a corpse, or carries it, or stands above it, he is like someone who did not touch the corpse.

For רמב״ם, a non-Jew is completely removed from the world of טומאת מת.  A non-Jew cannot become טמא, and so a non-Jew cannot transmit טומאה. This position appears to fit perfectly with the both יבמות and בבא מציעא, which both indicate that a non-Jewish corpse does not create טומאת מת through an אהל.

However, תוספות (in יבמות סא א ד”ה ממגע) side against רשב”ג:

ואר”י דאין הלכה כר”ש… וצריכים כהנים ליזהר מקברי עובדי כוכבים, ובפרק המקבל (ב”מ קיד:) בעובדא דאליהו דהשיב לרבה בר אבוה כר’ שמעון בן יוחי דהכא דחויי קא מדחי לה…

Ri says that the halacha does not follow Rabbi Shimon… and Kohanim must be careful about the graves of non-Jews, and in Perek Hamekabel (in Baba Metzia), concerning the story of Eliyahu, that he responded to Rabba Bar Avuh that the halacha follows Rabbi Shimon Bar Yochai, this was merely to push off the question…[2]

תוספות understand that רשב”י’s position about טומאת אהל is subject to a מחלוקת and side against him.  This forces תוספות to take a different approach to the story with אליהו, explaining that אליהו’s words are not to be taken as a halachic argument, but merely something to prevent further question. [3]

When it comes to practice, both the שולחן ערוך and רמ”א hesitate to rule as leniently as רמב”ם and rule, somewhat indecisively, in accordance with תוספות.  They write (in יורה דעה שעב:ב):

קברי עובדי כוכבים, נכון ליזהר הכהן מלילך עליהם; (מהר”מ ותוס’ פ’ המקבל) (אע”פ שיש מקילין (רמב”ם והגמי”י בשם ס’ יראים). ונכון להחמיר.)

The graves of non-Jews, it is appropriate for a Kohen to be careful not to walk on them. (Even though there are those who are lenient, it is appropriate to be strict.)

Given that the position of תוספות prevails in practice, it is worth considering the deeper significance of תוספות’s position.  After all, רמב”ם’s position not only fits better with the read in both Gemaras, but would seem to be more logical – across the board non-Jews are excluded from טומאת מת.  On the other hand, it appears that תוספות agree that a non-Jew cannot contract טומאת מת. Nonetheless, תוספות maintain that a non-Jewish corpse still transmits טומאה.  Why should this be the case?

The answer to this question could be the very nature for the reason for טומאת מת exists in the first place.  Rabbi Yechiel Michel Tucazinsky in גשר החיים (in a footnote to the beginning of פרק ו’ – דיני טומאה page עה), provides the following explanation for the concept of טומאת מת:

מעלת האדם, בחיר יצורי האדמה, שבכחו להתעלות בקדושה  – היא הגורמת שנמשכים ונאחזים באדם יצירי הטומאה… בדבר שאין לחלוחית קדושה אין להם אחיזה…

The greatness of Man, the chosen creation of earth, is his ability to ascend in holiness – this causes impurity to follow and adhere to a person… impurity does not take hold to something without even the slightest amount of holiness to it.

טומאת מת exists because of the unique holiness of humans.  It is not limited specifically to Jews, but to all mankind.  The human being, endowed with free will, has the potential to ascend to the greatest of heights.  This, alone, bestows a certain level of קדושה to all humanity. In this vein, בראשית רבה ח:א notes the following about all people:

אִם זָכָה אָדָם אוֹמְרִים לוֹ אַתָּה קָדַמְתָּ לְמַלְאֲכֵי הַשָּׁרֵת, וְאִם לָאו אוֹמְרִים לוֹ זְבוּב קְדָמְךָ, יַתּוּשׁ קְדָמְךָ, שִׁלְשׁוּל זֶה קְדָמְךָ.

If a person merits it, they say to him “your creation preceded the creation of angels.”  If not, they saw to him the fly preceded you, the mosquito preceded you, the word preceded you.

The laws that dictate when and how a person becomes טמא may be uniquely Jewish rules.  However, our innate sanctity as people is not based on commandedness or religion. Our potential to change, grow, and develop endows each of us, as people, with an internal holiness.  It is the vacuum of kedusha created by the loss of human life and ability to grow that creates טומאת מת. Let us therefore be mindful of the significance of what it means to be human and recognize that universally, we are holy and capable of profound growth and development.

Notes:

[1] As per רש”י there, רבה בר אבוה identifies אליהו as being פנחס, a כהן

[2] תוספות supports his ruling based on רבן שמעון בן גמליאל’s position in משנה אהלות יח:ט which implies that there is a concern of אוהל for a קבר עכו”ם.

[3] There is also a larger question about the concept of לא בשמים היא and deriving halacha from supernatural occurrences.

Jared Anstandig (SBM 2011) currently teaches Tanach and Gemara at Ramaz Upper School. This summer, Jared will be moving to Ann Arbor, Michigan and will serve as rabbi for the Orthodox community at the University of Michigan.

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Korach in Context

This week’s alumni Dvar Torah is by Dina Kritz

On some level, we’re not as surprised by the events of this week’s parsha as we should be. We know from history and current events that people often come forward when they’re dissatisfied with the leadership and insist on a change in the power structure. As students of Tanach, we’re very familiar with stories of both peaceful and violent leadership transitions. This story may also be familiar to those of us who can remember learning year after year about a rebellion swallowed up by the earth. However, in the context of the Chumash, the Korach story is actually pretty surprising.

Moshe has been the undisputed leader of Bnei Yisrael since they were in Mitzrayim. The people complain, sometimes very bitterly, and moan that he shouldn’t have led them into the desert, but they continue to rely on him. Suddenly, however, Korach gets up and declares that some changes need to be made: He and his group come before Moshe and Aharon and say “Rav Lachem! It’s too much[1]! All of the community are holy, and Hashem is among them, so why do you raise yourselves above Hashem’s congregation?[2]”

The parshanim offer several explanations for Korach’s behavior, and emphasize that he may be furious that Moshe chose their cousin, Elitzaphan, to be the Nasi of Shevet Levi. As Rashi puts it, Korach reasons that he should have been chosen to be Nasi, as his father comes before Elitzaphan’s in the order of Kehat’s sons. It’s certainly possible that Korach is seething with jealousy, but I believe it’s also important to bring up the role of the Nasi here to demonstrate the new power structure that has come up in Sefer Bamidbar: a plurality of leaders. In Shemot, Moshe was in charge, other than specific people chosen by Hashem to build the Mishkan or chosen by Moshe to help teach and judge. In Vayikra, the new leaders we meet are the Kohanim. In Bamidbar, however, we have the Nesiim of each tribe (including Levi), more responsibilities for the Leviim, and, when Moshe feels that his role is too much for him, seventy secondary leaders. Perhaps Korach and his contingent feel that they can ask Moshe to share or give up his authority because they’ve now seen that he’s not the only one who can lead.

One small problem with the theory that Korach is bitter over Elitzaphan’s appointment is that the appointment takes place many perakim earlier. Why would Korach only react now? Some parshanim, such as Abarbanel and Shadal, suggest that Korach protests now, after the sin of the meraglim, to take advantage of the nation’s despair over the spies’ report and the communal punishment. He knows people will be more likely to join him if they have a reason to be mad at Moshe. This makes sense, but I believe Korach may have additionally been inspired by the aftermath of the sin.

After Hashem declares that no one above the age of twenty will enter Israel, one group decides to conquer the land anyway. Moshe warns them not to go, stating twice that Hashem will not be with them. They proceed anyway, and are attacked by the Canaanite nations because, the Torah tells us, “the Ark of Hashem’s covenant and Moshe did not leave the camp[3].” This is one of the few times in the Torah that members of Bnei Yisrael go against Moshe’s direct orders and warnings. They suffer the consequences, but perhaps Korach was inspired by this group of people who chose not to heed Moshe’s word as law. Note that he is careful to point out to Moshe and Aharon in our parsha that the nation is holy and “Hashem is among them.” Perhaps he’s insisting that Bnei Yisrael doesn’t need Moshe’s leadership to access Hashem, but perhaps he’s also arguing that he and his group are not like the group of dissenters who tried to go to Israel and were punished. He’s seen that listening to Moshe may not be the only option, but he’s also seen the wrong way of going against Moshe. After all, there have been very few instances so far of standing up to or going against Moshe, and Korach presumably needs to gather some data, based on prior experience, before staging the first rebellion in the nation’s history.

As the mishnah states that Korach’s rebellion is the epitome of an argument which is not for the sake of Heaven[4], we shouldn’t fight for power the way he did. However, Korach can teach us lessons about how and when to effectively protest when we have something worthwhile to advocate for.

 

Notes:

[1] The translation of רב לבם is somewhat unclear. JPS translates it as “you take too much upon you,” while Sefaria translates it as “you go too far.”

[2] Bamidbar 16:3

[3] 14:4

[4] Pirkei Avot 5:17

 

Dina Kritz (SBM 2015) is pursuing a Master’s in Jewish Education at YU’s Azrieli Graduate School of Jewish Education and Administration.

 

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Masterpiece Cakeshop and the Spies

by Rabbi Aryeh Klapper

Mosheh gives the spies a tactical brief.  He wants them to tell him how best to conquer Canaan.  The spies instead present a strategic evaluation. They tell the people whether it would be best to try to conquer Canaan.

From a leadership theory perspective, there is room for blame all around. Administrators need to know their personnel well. They should not be surprised when independent and creative subordinates exceed their brief.  Trusted subordinates should try their best not to surprise the administrators who trust them, so the spies should have warned Mosheh Rabbeinu what they would be saying.  All this is wholly independent of the religious or practical correctness of the spies’ strategic conclusion.

The breakdown in the chain of command means that the dispute between the spies is presented to outsiders unmediated (as raw intelligence), and perhaps in a context of unmoderated direct democracy.  In such contexts (and many others), rhetoric, defined as the capacity to make the stronger argument appear weaker, and the weaker argument appear stronger, is generally more powerful than objective truth. Rule-bound democracies create the expectation that each presentation will be countered.  The audience knows enough not to act until it has at least the illusion of having heard all plausible positions defended. Here the proposal to return to Egypt is made before Calev and Yehoshua have said a word.

Mosheh and Aharon respond by (silently) falling on their faces in front of “all k’hal adat Yisroel”.  It is not clear whether their gesture is directly to the people, or rather whether they are assuming an attitude of prayer.  Yehoshua and Calev now speak, also to “all k’hal adat Yisroel”, and try to counter rhetoric with rhetoric.  The response, in verse 14:10, is:

“all the edah spoke to pelt them with stones; but the Glory of Hashem appeared in the Tent of Meeting to all B’nei Yisroel.”

It is challenging throughout Chumash to determine with any precision what is meant by the various terms for aggregations of Jews kehal, edah, kehal adat, Yisroel, bnei Yisroel, etc.  But careful readers cannot help noticing that three different such terms show up here.  Mosheh, Aharon, and all 12 spies speak to “k’hal adat Yisroel”; “all the edah” speaks about stoning; and the Glory of Hashem appears to “all Bnei Yisroel”.  Presumably these refer to separate groups, and we should at least try to identify them.

Once we undertake that task, we have to take note that in 13:26 the spies appear to report separately to “Mosheh, Aharon, and all k’hal adat Yisroel” and to “all the edah”.  In 14:1, it is “all the edah” that raises its voices”, while it is the “am” that cries. “All Bnei Yisroel complain to Mosheh and Aharon, but it is “all the edah” that expresses the complaint verbally. In 14:4., the plan to return to Egypt – possibly after appointing a new leader, depending on how one translates נתנה ראש – is spoken about “one man to his brother”, i.e. within a group.

One clue to unravelling all this, I suggest, is the term lirgom otam ba’avanim.  As used in the rest of Chumash, this does not seem to refer to mob killing, but rather to a form of judicial execution.

If we accept this, it follows that the edah is a judicial body with capital jurisdiction, aka a Sanhedrin.  This reading is strengthened by the inclusion in chapter 15 – apparently entirely out of context – of a sacrifice brought by the edah = Sanhedrin when it errs.  Presumably the decision to execute Yehoshua and Calev was an error.

Our image of one aspect of the episode of the spies therefore has to change. The final step of the sin is not mob violence, but rather the politicization of the judicial system.  There is hope for human agency until that point.  G-d finds it necessary to intervene only when the Sanhedrin decides to execute those who oppose the newly minted popular will.

The episode of the spies of course has eternal religious significance. I want to suggest here that it also has very immediate political lessons to teach about the role of the judicial system.  Specifically, I want to talk about the Masterpiece Cakeshop ruling of the Supreme Court. Let me be clear upfront that I think the lessons go both ways, and that poskim can and should learn from that ruling.

Masterpiece Cakeshop tested whether religious opposition to homosexual behavior could be legally stigmatized in the same way as racism, antisemitism, and misogyny.

Justice Kennedy’s opinion rested largely on the undisputed fact that an earlier person with authority over the case had condemned as “despicable” the use of religious arguments to refuse to provide a cake for a same-sex wedding.  This meant, he said, that the earlier hearing had been tainted by obvious and legally unacceptable hostility to the baker’s religion.

I doubt that the same argument would have been found convincing if the issue had been refusal to bake a cake for a mixed-race wedding.  Moreover, Justice Kennedy’s opinion fudges in that it leaves open the possibility that this kind of official animus toward a religious position was out of bounds only because it took place before Colorado had legalized same-sex marriage, in other words before homosexuality had been fully assimilated into prior civil rights paradigms.

I do not want to address the religious substance of the issue in depth here.  Suffice it to say that there are Orthodox Jews who believe very strongly that the halakhic prohibitions in this regard are rationally defensible and socially essential, while others believe as strongly that it is purely a chok that cannot be justified on any ground other than obedience to Divine Will.  Those in the former category have every reason to maintain a fighting retreat, and hold out the hope of regaining lost political ground. Those in the latter category have no real basis for carving out any but the narrowest legal protections for their religious needs.

I do want to argue that we should recognize as a society that moral changes which occur with sweeping rapidity are risky – that’s why we have a Constitution – and therefore where possible, people who stick to their suddenly unpopular moral positions should be protected.  In that regard, to the extent possible, even if we feel compelled to enact our current beliefs into law – and often we should feel the moral compulsion to do that – we should try our best to leave the courts as neutral arbiters of that law, rather than turning them into further vehicles of popular moral expression.

I am sure that the Sanhedrin saw it very differently.  From their perspective, the people had now been subjected for a year (or perhaps several hundred years) to ceaseless propaganda demanding the conquest of Canaan. The spies’ rhetoric provided a brief and fragile opportunity to overcome that propaganda, and it was essential to solidify that opportunity as rapidly and irreversibly as possible.

The spies were terribly wrong, and the Sanhedrin was wrong to accept their position.  But I wonder whether G-d would have found it necessary to intervene had they been willing to let Yehoshua and Calev have their say, without resorting to the threat of judicial violence.  Allowing the law to stigmatize moral dissent undermines the social contract which allows people with differing opinions to constitute and accept a common authority.

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Cast Aside but Not Abandoned

This week’s alumni Dvar Torah is by Benzion Chinn

Parashat Shelach is the middle of the Torah’s extended effort, starting last week and continuing through Chukat, to shoot down in advance any attempt to write an “Artscroll history” of our ancestors. We are presented with an almost non-stop parade of Israelite missteps to anger God that somehow ensnares even their leaders.

This week’s episode of the spies represents a critical low point in this parade of follies. Moses sends out spies to scout out the Land of Canaan and they bring back a negative report, causing the Israelites to refuse to enter the land. In contrast to the previously established pattern of event, God becomes angry – Moses prays – God forgives the people until the next incident = this time God washes his hands of the Exodus generation and declares that Bnei Yisroel will now have to wait thirty-eight years, until this generation has passed away, to finally inherit the land.

As with all great tragedies, there is a gleam of hope to save us from utter despair. Yes, God temporarily cast Israel aside and hid his face, but even in the depth of anger, He did not abandon us.

Perhaps more than the highs of the biblical narrative, it is this low that binds God to us. We can pray to the God of Abraham, Isaac, and Jacob, Sarah, Rebecca, Rachel and Leah.  but in seeking that protection there is a trap. Do any of us really live up to the Patriarchs and Matriarchs, so that we can honestly call ourselves their children?

I do not know about you but, for myself, I confess that Pauline Christians have the first part of their argument right. I am a Jew descended of the wrong Israelites; my ancestors complained in the desert, built the Golden Calf, danced in a non G-rated orgy and later listened to the falsehoods of the spies. Again and again, they tested God and whether He would destroy them, to the extent that He took a step back from them for a generation. Yet, in the end, God did not abandon them. More than any promise to any righteous ancestors, it is this promise to Israel’s sinners that gives me faith that we too will not be abandoned.  

This has implications for how we understand the upcoming period of the Three Weeks. If the biblical narrative encapsulates Jewish History, the episode of the spies represents the destruction of the two temples. According to rabbinic tradition, the spies returned on the ninth day of the month of Av. God promised that, because the Israelites cried for nothing, in the future he would give them something to mourn. Tisha B’Av is contrasted with the holiday of Passover as the day we left Jerusalem instead of Egypt. On the surface, Tisha B’Av is a day of mourning but, as R’ Akiba taught us, there is a mysterious laughter to accompany the crying.

R’ Akiba could laugh at the ruins of the Temple because he saw in those same ruins the reality of redemption; if God has fulfilled His curses, He is bound now to carry out his promised blessings. In a sense, Tisha B’Av is not the opposite of Passover but a twin that safeguards its promise. If Passover is God’s redemption, Tisha B’Av is the guarantee that God would not abandon Israel like a romantic couple that gets divorced a few years later. In Lamentations, Jerusalem is compared to a woman in a state of niddah. That is a curse, a blessing and a promise. Niddah can be a very difficult and solitary time.  But it is a status within an ongoing committed relationship, not a divorce. The comparison carries the promise of a time of taharah and togetherness. If you say that God has declared us impure and put us aside then you implicitly concede that no divorce happened and we are coming back.

Benzion N. Chinn (SBM 2003) lives in Pasadena with his family, where he works as an academic and special needs tutor. He pontificates on religion, politics, and sci-fi/fantasy on his blog,  izgad.blogspot.com.

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You Can’t Always Get What You Want

This week’s alumni Dvar Torah is by Rabbi Yonatan Kaganoff

Parshat Baha’alotcha begins with God commanding Moshe to instruct his brother Aharon to light the Menorah as part of the daily service in the Mishkan.

Rashi, quoting Midrash Rabba and Midrash Yelamdeinu, the proto-Midrash Tanchuma, says that this section is placed here, immediately after the offerings by the twelve Nesi’im (princes) during the dedication of the Mishkan in Pashat Naso, because Aharon was distressed when he saw the princes’ contributions from which both he and his tribe, the Levi’im, were excluded. God responds to Aharon’s distress with the commandment of the lighting of the Menorah implicitly telling Aharon that his “portion” was superior to that of the princes.

The Ramban asks how the voluntary dedication offerings of the tribal leaders was similar to the daily lighting of the Menorah. Remarkably, he eventually concludes that God, in these Midrashim is actually alluding to the story of Chanukah. The role of the tribal princes and their offerings during the dedication of the Mishkan pales in comparison to the centrality of Aharon’s descendants, the Chashmonaim in the future salvation and rededication of the second Beit ha-Mikdash.

While the Ramban’s explanation of these Midrashim is compelling by making Aharon’s “portion” directly parallel to the “portion” of the princes, the assumption that God is alluding to events over 1,000 years in the future is problematic.

Additionally, the Midrash itself, as quoted by Rashi is odd. In Sefer Vayikra, Aharon and his sons play a central role in the sanctification and dedication of the Mishkan. Why then, would the contributions of the tribal princes so bother him?  Are we to assume that Aharon wanted a monopoly over the Mishkan and was unable to grant anyone else a distinct role in its worship?

I would like to suggest an interpretation of the Ramban’s comments and their underlying dynamic.

When Aharon was chosen to be the Kohein Gadol, the religious leader of Bnei Yisroel, and the prince of the tribe of Levi, designated to serve in the Mishkan, he gave up his role in the conquering and settlement of the land of Israel. He was effectively removed from the military and political realms. This is why his tribe Levi were not counted with the rest of the nation in the beginning of Bamidbar. That census was to create an accurate assessment of their military forces as Bnei Yisroel prepared for war.

Aharon freely relinquished these powers when he became the Kohein Gadol. And the implicit assumption in that exchange was that the princes, the political and military leaders of B’nei Yisroel, would have lesser roles in the religious realm whose locus in the desert was the Mishkan.

However, at their own initiative, the princes contributed to the dedication of the Mishkan, and, as portrayed in the Sefer Bamidbar narrative, their offerings were the central focus of that dedication.

When Aharon saw that the princes, the political and military leadership, were central in the dedication of the Mishkan, he became distressed about relinquishing his political and military authority on becoming Kohein Gadol.

I am not suggesting that Aharon desired political or military power for its own sake. Rather, by correctly wielding his authority and leading Bnei Yisroel, he could guide them in the proper direction.

When he saw the princes having both political and religious roles, he felt distressed that he had given up the political sphere.

God’s response in the Midrash now takes on new meaning. During the story of Chanukah, the Chashmonaim, in addition to their birthright religious positions, took on the military and political leadership. God’s reply to Aharon’s pain was that in the future the political and military leadership would return to Aharon’s descendants.

And yet Aharon’s perspective is completely understandable. Even today, many people chose a career in either Avodas ha-Kodesh or the “secular” world and thereby forego a profession in the other realm. And witnessing others who are successful in both realms can easily invite regret for one’s choices.

And yet we see from God’s original model of Aharon the Kohein Gadol that keeping the leadership of these realms separate may be the best way to maintain the integrity of both.

 

Yonatan Kaganoff (SBM 1997)lives in Passaic, NJ with his family, where he works in cryptocurrency and is an amateur puppeteer.

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The Use of Halakhic Materials in Discussions of Public Ethics

by Rabbi Aryeh Klapper

I was saddened to read of the petirah of Dr. Rabbi Baruch Brody z”l, father of Rabbi Shlomo Brody (SBM 2001) and medical ethicist extraordinaire.  Dr. Brody’s collection Taking Issue was a source of enormous consolation to me during my mother aleha hashalom’s illness, and his work continues to influence my thinking.  The following dvar Torah is in dialogue with the final essay in that collection, “The Use of Halakhic Materials in Discussions of Medical Ethics”.    

Dr.  Baruch Brody distinguished three ways to use halakhic materials in discussions of medical ethics.  I suggest that medical ethics is a particular example of public ethics, or ethical issues that need to be decided communally rather than by autonomous individuals.  The three ways are:

1)      as a source of ideas which can be defended independently of their origin

2)      as a basis for mandating certain forms of behavior for members of the Jewish faith who are perceived as bound by Jewish law

3)      as the basis for claims about the Jewish view about disputed topics in public ethics.

Dr, Brody sees the first way as nonproblematic.  If an idea can be defended without reference to its origin in halakhah, of course it has a place in public discourse.  Academics should footnote appropriately.  But so far as public discourse is concerned, the same idea often occurs in many different traditions, and we should be indifferent as to which tradition suggested the idea to any particular person.

I suggest that footnotes matter in public discourse as well.  Claims that a position is well-rooted in a particular tradition make it more appealing to people who identify with that tradition, and to others who deeply respect that tradition, in the same way that attributing a position to a person will add or detract to its appeal depending on that person’s public image.

This is not a bad thing.  I do not concede that public moral discourse ought to be completely denatured, and that all arguments about public ethics must plausibly claim to have been immaculately conceived.  I do accept that particularist religious arguments are generally out of bounds if they cannot be defended on universal grounds.  But I’m not sure that we need to defend them exclusively on universal grounds.

This being so, it is important to recognize that one can draw ideas out of the halakhic corpus and then use them to reach conclusions that halakhah in practice rejects, or has never contemplated.  These must be footnoted differently than ideas which emerge from the halakhah as an overall and practiced system.  The distinction may be parallel to one suggested by Rav Aharon Lichenstein zt”l between ideas that emerge out of the substantive content of a halakhist’s work, and ideas that are under the authority of that halakhist.

Halakhah tends to be much more fully developed with regard to Jews than nonJews.  Therefore, one can often claim the authority of Halakhah when one seeks to mandate certain forms of behavior for Jews (#2 above). However, a claim that this behavior is mandatory for an integrated Jewish-nonJewish society will be much less likely to have such formal authority.  Instead, it will generally be a projection of how Halakhah might or should develop if it were given authority.

This brings us to the central point of Dr. Brody’s article.  It is common for Jewish books on medical ethics to extrapolate from the Halakhah to public ethics.  But the Halakhah may apply only to Jews!  “Authors who use this material for the third use distinguished above may then incorrectly conclude that obligations which are supposed to fall only upon the Jewish people fall upon all people.” So one must be very cautious in moving from Halakhah to public ethics.

Dr. Brody humbly gives an example from his own work which he sees as instantiating that fallacy.  The question he addressed was whether a married man could undergo gender reassignment surgery over his (female) wife’s objection.  Among the arguments he made was that under secular law as it then (1981) stood, gender reassignment would automatically terminate the marriage, and that Jewish law had opposed such unilateral termination since Rabbeinu Gershom forbade it in the 11th century. (Note: The argument also assumed a “fault” framework for divorce; contemporary secular “no fault” divorce law in principle allows either party to terminate the relationship unilaterally, without needing recourse to radical surgery or identity shifts. In practice, the New York Times recently published as article on secular agunot, who remain married because their abusive husbands have disappeared and they cannot serve divorce papers on them.)

Dr. Brody contends that applying the Cherem d’Rabbeinu Gershom was an error, because it applied only to Jews (perhaps only to Ashkenazim). It cannot serve as the basis for a claim that Judaism or Jewish law oppose unilateral divorce outside the context of the Jewish community.  The Torah may permit either spouse in a Noachide marriage to end the relationship unilaterally, and Rabbeinu Gershom’s decree would have done nothing to change that.

I’m not certain the application was an error.  It seems to me that we can distinguish between conclusions that within the Halakhah are justified on particularist grounds, and those that even within Halakhah are justified on universal grounds. If the halakhic tradition understands the Cherem to be motivated by an ethical sensibility, then it would be legitimate to bring that ethical sensibility to the public discourse.  One could not quite argue that it was “under the authority” of Halakhah, but once could go further than “this idea was suggested to me by” Halakhah. But I acknowledge that the halakhic process is usually murky as to whether a particular principle can be justified without a particularist appeal, and laws can move over time from one category to the other (“chokification” and “mishpatification”).

I think there may be another and more serious methodological problem.

Let’s assume that in many cases we can figure out the halakhah for Jews, and the halakhah for nonJews.  Dr. Brody suggests that where they diverge, we are stuck, and Halakhah has no role in public discourse.

I think we need to push the question a little further.  Why are we stuck?  After all, we might argue in many such cases that the law for Noachides rests on universal principles, whereas the law for Jews rests on particularist grounds.  If that is so, our public ethics position should follow Noachide law, with a standard argument that the law should allow a religious conscience objection.  In other cases, we might argue that the law for Jews represents the ethical ideal, and Noachide law is a concession to the reality of most societies.  Our public ethics position would then follow the halakhah-for-Jews in any society ethically advanced enough to make it a live option.

Both these models assume that the Halakhah for integrated societies must fundamentally be either the halakhah for Jews, or else Noachide Law.  But perhaps this binary is incorrect, and the Halakhah for an integrated society would be entirely different.

As an analogy: In the realm of Shabbat, halakhah as-it-stands is utterly different for Jews and nonJews.  We think of the two societies as intersecting for Shabbat purposes mostly in the realm of “amirah lenokhri”, of what Jews can and can’t have nonJews do for them on Shabbat.  But what if we tried to think of what Shabbat would be like in an integrated society, where the issues are not just melakhah but also labor laws, time for family and reflection, and the like?  Should the soccer stadiums and/or the malls and/or the corporate law firms be open, or closed? Could such a society have a shared public Shabbat even if Jews were privately forbidden to do melakhah and nonJews were privately obligated to do at least one melakhah?

Shabbat shalom

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