Category Archives: Weekly Devar Torah

Portrait of a Nation as a Young Person

by Rabbi Aryeh Klapper

ויאמר יקוק אל משה

הנך שכב עם אבתיך וקם העם הזה

וזנה אחרי אלהי נכר הארץ אשר הוא בא שמה בקרבו

ועזבני והפר את בריתי אשר כרתי אתו:

וחרה אפי בו ביום ההוא ועזבתים

והסתרתי פני מהם והיה לאכל

ומצאהו רעות רבות וצרות

ואמר ביום ההוא

הלא על כי אין אלהי בקרבי מצאוני הרעות האלה:

ואנכי הסתר אסתיר פני ביום ההוא

על כל הרעה אשר עשה

כי פנה אל אלהים אחרים.

Devarim 31:16-18

Hashem said to Mosheh: 

You will be lying with your ancestors, and this nation will arise

and whore after the alien gods of the land to which it is going there, into its midst,

and they will abandon Me, and nullify My covenant which I have cut with them.

My anger will burn in them on that day, and I will abandon them,

and I will conceal My face from them, and they will become prey,

and many great and terrible evils will find them.

He will say on that day:

‘Isn’t because my G-d is not in my midst that all these evils have found me?”’

I will emphatically conceal My face on that day,

 on account of all the evil which he did,

because he turned toward other.

These verses seem to be among the darkest passages in Torah.  They appear to end without any promise of either spiritual of physical redemption.  Is that possible?  Or is it our job to somehow find the light hiding beneath the bleakness?

Let’s focus in on the concept of hester panim, the concealment of the Divine countenance (k’b’yakhol).  My sense is that most yeshivot teach, as I was taught, that hester panim is an ultimate tragedy, and yet that even at its worst, G-d still so-to-speak “peeks”.  Thus the Pentateuchal hint that legitimates the holiday of Purim is “haster astir”, “I will emphatically conceal”, which punningly refers to Queen Esther (see Chullin 139b).  Otherwise the Rabbinic institution of a ritualized annual celebratory day would be a clear violation of “Do not add onto or subtract from (the Torah’s set of commandments”.

Rereading our parashah, however, I was very confused by the flow of the verses.  It seems that

a) the Jews abandon G-d, so

b) He conceals His face and terrible things happen to them, so

c) they realize and articulate that His absence is the cause of those terrible things, so He

d) emphatically conceals His face?!

Why does G-d “emphatically conceal” His face rather than turn back to His people when they turn back to Him?

‘Targum Yonatan’ [1] suggests that G-d continues His self-concealment only so long as the Jews’ punishment for their past sin is incomplete.  This is a reasonable literal translation of our verse, but seems to me a very difficult read of the whole unit.  Netziv (and Malbim works along the same lines) tries to solve the problem in the opposite direction, by claiming that the Jews’ use their recognition that G-d’s absence is causing their troubles as an excuse to abandon Him further, rather than as a spur to teshuvah.  He acknowledges that this leads to an ever-worsening spiral of sins, and it’s not clear how we are ever to escape it and bring Redemption.

Rashi and many other pashtanim suggest that the first concealment is not punitive; it is rather the looking-away of an authority figure who cannot bear to see his charge punished.  This seems to intensify rather than resolve our problem – what is the meaning and purpose of the emphatic second concealment?

Talmud Chagigah 5b records two rabbinic readings which apparently see the double “haster astir” as limiting rather than expanding the concealment.

אמר רבא:

אמר הקדוש ברוך הוא:

אף על פי שהסתרתי פני מהם, בחלום אדבר בו;

רב יוסף אמר:

ידו נטויה עלינו, שנאמר “ובצל ידי כסיתיך”.

Said Rava:

Said the Holy Blessed One:

Even though I have concealed My face from them, I will speak to him in a dream;

Rav Yosef said:

His hand is outstretched over us (Rashi: to protect us),

as Scripture says “and in the shadow of My hand I have covered you” (Isaiah 51:16).

What generates these readings?  Yerushalmi Sanhedrin 10:2 draws a connection to Yeshayahu 8:17:

וחכיתי לה’

המסתיר פניו מבית יעקב

וקויתי לו:

And I have waited for Hashem,

Who hides His face from the House of Yaakov,

and I have hoped toward Him

The argument, in the manner of Rabbi Akiva rejoicing at seeing the fox on the Temple Mount, is that when the promise of deepest darkness has been fulfilled, surely the promise of dawn must be next.  Devarim 31:21 does after all promise that the Torah will never be forgotten by the Jews.

I prefer, however, to stay with Rav Yosef’s verse.  What is the meaning of the metaphor that Hashem “covered you with My hand”?  I suggest that this is a reference to Shmot 33:21-23, in which Hashem covers Mosheh with His hand so that Mosheh will not see His face (and die).  In other words, it is a reference to a verse in which the concealment of Hashem’s face is explicitly intended to protect rather than abandon.

With this in mind, it may be worth noting that Devarim 31:17 refers to concealing His face from them, whereas 31:18 speaks only of an objective concealment.  The Rabbis may have seen here the image of a concealed face, as they saw it in Shmot, as establishing the metaphor of Hashem as tallit-wrapped, praying for His people (on account of all the evil which they did, because they turned toward other gods).

Note also that many theologians have built on Rashi by noting that looking-away can be a parental gesture of granting autonomy, of allowing a child to grow up.  Hester panim, however regrettable, also represents an opportunity to take responsibility for our individual and national selves.  Under this reading, for G-d to rush in to rescue us as soon as we recognized the costs of His absence would be to permanently infantilize us, and so G-d assures us – emphatically! that He will not do so.

And yet – human beings grow up.  There comes a time in most lives when there is no longer room for concern that parental rescues will prevent or undo maturity – children can accept their help and constant concern as a beautiful part of the adult world in which they find themselves.  This is also enormously liberating for parents.

What remains to be seen is whether nations can also achieve maturity, or whether that is instead exclusively the province of individuals. Clearly nations do not have the biological development that individuals do, and in that sense it seems likely that any national maturity is much more reversible than individual maturity.  But it is possible that the accrual of moral, political, and social capital can have the same effects as maturity.  (See in this regard Yoni Appelbaum’s article in the Atlantic on how Americans are losing the habits of democracy.  My thanks also to the friend who called my attention to Reinhold Neibuhr’s Moral Man and Immoral Society).

In the specifically Jewish context, the question is whether profound maturity can genuinely be achieved in exile, or whether even millennia of exile at best brought us to bat/bar mitzvah age when we again achieved sovereignty.  At the same time, it seems unlikely that the best way of confronting those challenges is to reject the lessons of the exilic past, and to believe that one has nothing to learn from those who retain them.

May we merit reaching that condition of spiritual excellency and maturity that enables the end of hester panim, and the return of the Shekhinah from exile.

Shabbat shalom

Notes:

[1] (I grow more and more convinced that Limor Gottlieb is correct to identify this “targum” as a fairly late medieval commentary)

This Dvar Torah is a rewrite of a Dvar Torah originally published in 2011

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Should Divrei Torah Take Sides in Political Disputes?

by Rabbi Aryeh Klapper

Teachers of Torah must continually choose between timeliness and timelessness.  Both options are legitimate.  When the political issues of the moment are genuinely important, Torah should have something to say about them rather than shrinking off to a neutral corner.  Involvement in politics is a great mitzvah when genuinely motivated by the pursuit of the straight and the good, as G-d gives us to see the straight and the good.

Yet under ordinary circumstances Torah itself must not become partisan. Legal interpretation (really all interpretation) loses its authority when it becomes subordinated to an external agenda. Even the perception of partisanship tends to greatly diminish moral influence.  (I say “tends” because there is a clear exception. The most passionate partisans may dismiss the words of anyone not clearly identified with their political sect. But such people are often open to influence only within a very narrow range. They will turn on prophets or scholars who presume to critique the partisan line of the moment.)

I faced this issue squarely when thinking about what to write this week. So many American political issues of the moment deserve Torah treatment that writing about something else seemed an abdication of responsibility – and yet is it possible to speak Torah about them in a way that deepens the issue rather than cheapening the Torah?

Torah Jews are subject to the same political passions as everyone else. As citizens, we – scholars and salts of the earth alike – naturally become progressive and reactionary, liberal and conservative, just like everyone else. So our timely Torah is likely to be under partisan influence, even if we try to be self-aware. 

My admittedly inadequate solution for this week is as follows.  Ten years ago, when John Roberts was nominated for Chief Justice, I wrote an op-ed about judicial character for Edah, which was picked up by the Milwaukee Chronicle.  It seems to me that it stands rereading in the context of the Kavanaugh nomination.  My hope is that the explicit recognition that it was not written in response to this moment will help readers evaluate the Torah claims on their own terms, and then make their own decisions about how those claims might play out in practice today.

(Note: The printed version was superbly edited by Dr. Alan Brill to make it more accessible, but I will take this opportunity to make available a version closer to my original.)

JUDAISM PROVIDES HELPFUL GUIDELINES FOR CHOOSING JUDGES

The prospect of an entirely reshaped U.S. Supreme Court makes it important that Americans have a serious conversation about our constitutional system. Jewish tradition can make a significant contribution to that conversation.

When Moses creates the first Jewish judiciary, God instructs him to appoint “men of strength, in awe of God, men of truth, haters of corruption” (Exodus 18:21). The first lesson Jewish tradition teaches is that judicial character is more significant than judicial politics.

Today’s nominees will likely make their most critical decisions about issues that do not yet appear on the legal horizon. What matters most is not their specific positions but their temperament and understanding of the responsibility of the court.

The purpose of a constitution is to place basic principles beyond the reach of the powerful.  ln a genuinely democratic society, power rests with the majority.  Paradoxically, a primary purpose of democratic constitutions is fundamentally antidemocratic, to protect minorities against the tyranny of the majority.  Another purpose is to prevent other sources of power, such as wealth, from usurping the powers of the majority. Justices must understand that it is the court’s responsibility to enable the constitution to play these roles.  

The second lesson Jewish tradition teaches consists of a model for the long-term success of a text-ordered society. In Judaism, texts restrain power through authority, and texts gain authority because they have meanings that are discovered rather than produced by their interpreters.

When judicial rulings are perceived as reflecting judges’ political opinions rather than painstaking scholarship, they lose their authority. Thus the public perception, justified or not, that Gore v. Bush was decided on the basis of party affiliation cost the Supreme Court tremendously.

The Talmud records similarly that the Great Sanhedrin’s capacity to prevent disputes in Israel ended when its members were perceived as ruling on the basis of affiliation with the School of Hillel or the School of Shammai rather than on the basis of individual judgment.

The third lesson is that even though the Torah exhorts us to care for the poor, nevertheless it bans favoring them in legal disputes (Leviticus 19:15). This is because the rich will only concede power to the law if they see its interpreters as objective and impartial.

Over much of the latter 20th century, the federal judiciary tended to be more liberal than the electorate. Liberals accordingly sought to expand the discretion of the courts, especially with regard to constitutional interpretation.  (In the early 20th century, liberal policy goals were often frustrated by the discretion of a court they saw as too conservative.  Hence FDR’s threat to “pack the court”.)

Some of the important advances of the civil rights movement were made possible by these theories. The liberal gains, however, because they were enabled by creative but intellectually unconvincing readings of the Constitution, made the text less capable of resisting political agendas.

The fear inspired in liberals by the prospect of a conservative Supreme Court brings home the price that has been paid for those theories. If the text of the Constitution were seen as controlling, the political leanings of potential justices would have far less potential effect.

At the same time, if the Constitution had passed through the fire of the civil rights movement unaffected, if the text were not seen as genuinely responsive to the humanity of African Americans, it would be morally obsolete.  But how can a text respond to changing circumstances and contemporary moral insights without losing its authority?

Jewish tradition offers a straightforward if difficult prescription — stick to the traditional meaning of a text except when urgently necessary. The Talmud celebrates legal adaptation, but maintains its received lore with almost fanatic obsession with detail.

When teaching rabbinic students, I gradually bring them to the realization that authoritative interpreters have nearly absolute power over texts, and that real creativity is possible. At the same time, I teach them that this power must be used with extreme caution. If a text can mean anything, it means nothing.

Sometimes, as for example in the face of disaster, one must reread the text and find new wine in old barrels through legitimate legal interpretation. 

After the destruction of the Second Temple, the rabbis of the Talmud found creative ways to compensate for the loss of the sacrificial order; and in medieval times, rabbis found creative ways to justify commercial transactions banned by the plain meaning of the Talmud. But this creativity took place against a static traditional background.

Crucially, the rabbis were continuously aware that their capacity to innovate stemmed from their predecessors’ resistance to innovation and their own usual reliance on precedent.

They realized that judicial discretion is not an easily renewable resource, but rather a capital account built up by years of judicial restraint. When they used this resource, they spent it carefully and wisely.

In other words, the rabbis understood that the authority of law, and its capacity to protect the weaker members of society, depends on a combination of judicial humility and self-confidence.

The Talmud teaches that only humble people can learn Torah properly. Yet, it saw excessive rabbinic humility in a time of crisis as causing the destruction of the Second Temple. The complex task of a judge is to be exceedingly humble without being excessively so.

At the nomination hearings of any potential Supreme Court justice, the question we should be asking is not whether he or she agrees with our political positions.

Rather, Jewish tradition teaches that we should be asking whether that individual has the humility to bow before the text and its history of authoritative interpretation, and the self-confidence and ingenuity to stand against that history when necessary to preserve the authority of the text.

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Parents as People: The Relationship between the Obligation to Honor Parents and the Halakhic Concept of Human Dignity

 

by Rabbi Aryeh Klapper

A beraita on Kiddushin 30b presents one rationale for the halakhic obligation to honor parents.

שלשה שותפין הן באדם:

הקדוש ברוך הוא, ואביו, ואמו.

בזמן שאדם מכבד את אביו ואת אמו, אמר הקדוש ברוך הוא:

מעלה אני עליהם כאילו דרתי ביניהם וכבדוני

There are three partners in the human being:

The Holy Blessed One, its father and its mother.

When a person honors (is mekhabed) their father and mother, The Holy Blessed One says:

I regard them as if I had dwelled among them and they had honored Me.

However, that beraita is being rapidly obsolesced by the wide variety of contemporary reproductive practices.  Doctors and nurses are partners in reproduction via IVF and most artificial insemination; gestational carriers are partners in surrogacy; mitochondrial DNA donors relieve the risk of some hereditary diseases; and random people may soon be partners in chimaeras.  All this on top of the traditional cases in which halakhah recognizes a child as having a legal mother but no legal father, such as when the mother is Jewish but not the father.

It does not matter whether we greet the multiplication of such cases with ambivalence, horror, or joy.  The fact remains that the “three partners” metaphor is no longer a compelling description on a physical level.  This is even more true if we look at the physiological explanation given in the version of the beraita found on Niddah 31a:

שלשה שותפין יש באדם:

הקדוש ברוך הוא, ואביו, ואמו.

אביו מזריע הלובן,

שממנו עצמות וגידים וצפרנים ומוח שבראשו ולובן שבעין

אמו מזרעת אודם,

שממנו עור ובשר ושערות ושחור שבעין

והקב”ה נותן בו

רוח ונשמה וקלסתר פנים וראיית העין ושמיעת האוזן ודבור פה והלוך רגלים ובינה והשכל

וכיון שהגיע זמנו להפטר מן העולם

הקדוש ברוך הוא נוטל חלקו וחלק אביו ואמו מניח לפניהם

There are three partners in the human being:

The Holy Blessed One, its father and its mother.

Its father generates the white,

from which emerge the bones, tendons, nails, and the brain in its head and the white of the eye

The mother generates the red,

from which emerge the skin, flesh, hair, and the black of the eye

and the Holy Blessed One places in it

spirit, breath, facial features, vision, hearing, speech, mobility, understanding and intelligence

When its time comes to depart from the world

The Holy Blessed One takes His share and leaves the share of the father and mother before them.

The fading applicability of this metaphor is a challenge, but also an opportunity.  The appeal and power of the human-Divine parental partnership metaphor may obscure and deemphasize important underlying halakhic principles of parent-child relationships.  These principles may be easier to discover and understand in our day.

One clue to such principles may be found in Devarim 27:16:

אָר֕וּר מַקְלֶ֥ה אָבִ֖יו וְאִמּ֑וֹ

Blasted be one who is makleh his father or mother

To be makleh probably means “to make kal (=lighter).  It is therefore the antonym of l’khabed =to make heavier, and a less intense form of l’kallel =to make very light =to curse.  The Torah obligates us l’khabed our parents, and forbids us l’kallel them on pain of death.  So what is added by this prohibition?

Fascinatingly, this verse is never cited explicitly in the literature of Chazal, so far as I can tell.  But Rambam (Hilkhot Mamrim 5:15) gives it a place of prominence:

ולא על הכאה ולא על הקללה בלבד הקפידה תורה

אלא אף על הבזיון,

שכל המבזה אביו או אמו

אפילו בדברים ואפילו ברמיזה –

הרי זה ארור מפי הגבורה,

שנאמר ארור מקלה אביו ואמו

The Torah was not insistent only about not-striking and not-cursing parents

but rather even about degradation

since anyone who degrades their father or mother

even verbally, even by gesture –

is blasted from the mouth of the Omnipotent

as Scripture says: “Blasted be one who is makleh their father or mother”.

Rambam seems to believe that “degrading” parents is not a violation of the obligation to honor them, or even of the obligation to revere/awe them.  This seems very peculiar.  His rhetoric “blasted from the mouth of the Omnipotent” also seems peculiar, as he is referring to the curses uttered by the people – albeit at Hashem’s dictation – on Har Eival.  Moreover, his position yields a very difficult halakhic result.

An Amoraic statement on Kiddushin 32a-b permits parents to waive their children’s obligations of kavod, and Rambam (Hilkhot Mamrim 6:8) seems to make this waiver obligatory:

אסור לאדם

להכביד עולו על בניו ולדקדק בכבודו עמהם

שלא יביאם לידי מכשול,

אלא ימחול ויתעלם

שהאב שמחל על כבודו – כבודו מחול.

It is forbidden for a person

to heavily impose his yoke on his children and to be picky about his honor with them

lest he cause them to transgress.

Rather he must waive and look away

since a father who waives his honor – his honor is waived.

Raavad (cited in Responsa Rivash 220) derives by analogy from the honor of scholars that a parent cannot waive the obligations of children to the extent of permitting severe degradation. However, now that we have a separate prohibition against degradation, it may be that parents cannot forgive anything negative.  Netziv further argues (Responsa Meshiv Davar 2:50) that this obligation is not subject to the limits imposed on other obligations toward parents:

נראה דהא דאי’ ביו”ד (סי’ ר”מ סכ”ה)

“וכן אם האב מוחה בבן לישא איזה אשה שיחפוץ בה, א”צ הבן לשמוע אל האב”

זה אינו אלא באופן שאין באשה שחפץ בה בזיון וצער לאב

It seems that what is written in Yoreh Deah 240:25

“So too, if a father objects to a son marrying the woman he wishes to, the son need not heed the father”

applies only in a case where marrying her would not cause the father degradation or pain

Note that Netziv adds “pain” to degradation, further expanding the scope of the obligation and limiting the space in which children’s right to autonomy can shield them against unhealthy parental domination.  (Netziv likely does this on the basis of Sheiltot d’Rav Achai Gaon 61, which in a manner similar to Rambam asserts that children are obligated to not-pain their parents, not only to not-curse them.)

I suggest that while Devarim 27:16 is not cited explicitly in Chazal, it is cited implicitly in at least one place, and its use there will give us a very different halakhic principle and outcome.

On Kiddushin 32a, the Talmud attempts the following proof for the position that parents must bear the financial costs of their children’s obligation to honor them.

A beraita rules that children may feed their parents out of the poor tithe.  This proves that children have no financial obligation toward parents, as otherwise they would be satisfying their personal obligation out of money that we conceive of as already belonging to the poor as a class.

The Talmud rejects the proof by suggesting that the beraita discussed a case in which the child had already satisfied the personal obligation of honoring, and yet the father wanted more.

But the Talmud challenges the rejection, as follows. The beraita continues by citing Rabbi Yehudah’s position that a m’erah (=blasting?) should befall one who feeds their parent poor-tithe.  Why should the child be cursed if the case is one in which the obligation of kavod has been satisfied?

The Talmud answers:

אפילו הכי, זילא ביה מלתא

Nonetheless, it is degrading to him

The obvious problem with the Talmud’s answer is: If it is degrading, then how can the obligation of honor have been satisfied?

We must answer that the obligation that generates the curse cannot be related to the regular obligation of honoring parents. But then what is its nature?

I suggest that the Talmud here is differentiating between honoring parents as parents, and honoring them as human beings.

Honoring them as parents – as G-d’s partners in creation – requires engaging in a set of formal activities that are not culturally contingent or socially derivable.

Honoring parents as human beings, by contrast, means treating them in the way that recognizes your human relationship with them.  It is a subset of the obligation to respect human dignity, which the Talmud acknowledges can vary depending on social position.  To feed parents out of poor-tithe degrades them because it treats them as human strangers, not because it fails to treat them as G-d’s partners.  (This obligation may therefore apply as much or more to adoptive as to biological parents.)

On this understanding, Rambam’s framing of the obligation is contingent on the conventions of one’s society, and children always have the right to choose their own spouses, although for most people in most places during most periods it would be wise and proper for them to consult their parents before doing so.

One framing of the Torah obligations toward parents depends on having children view their parents as creators in partnership with and therefore almost on par with G-d.  Another roots the relationship in a recognition that parents, like everyone else, were created b’tzelem Elokim and deserve social dignity.  As biological parentage becomes an ever more fraught concept, it seems likely that the second model will and should become more prominent.  At the same time, the formal and fixed Torah obligations toward biological parents should remind us of the grave social risks involved in the progressive separation of biological reproduction from human responsibility.

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Are Husbands Commanded to Make Their Wives Happy?

by Rabbi Aryeh Klapper

This dvar Torah is dedicated in memory of Fishel Yitzchak Ben Shmuel Zisblatt by his wife, children, grandchildren and great grandchildren.  To sponsor a weekly dvar Torah, please email moderntorahleadership@gmail.com

I had the privilege many years ago of meeting the extraordinary rosh yeshiva/novelist Rav Chaim Sabato at a family picnic/soccer game.  After some goodnatured badinage (=trash talk) about the unfortunate consequences of my choosing to play in sandals, we got into a more serious conversation about my beard.  I told Rav Sabato that I intended to shave on my first wedding anniversary, once the mitzvah of making my wife happy had expired.  He insisted forcefully that the mitzvah applied throughout one’s lifetime.

I hope that I’ve succeeded in living by his ruling, and it is of course a stringency that all husbands should adopt voluntarily and with gusto. But nonetheless “this too is Torah, and I need to learn”.  So a score and more years later, I am finally willing, albeit with trepidation, to start an in-depth look at the topic.

Devarim 24:5 reads as follows:

כִּֽי־יִקַּ֥ח אִישׁ֙ אִשָּׁ֣ה חֲדָשָׁ֔ה

לֹ֤א יֵצֵא֙ בַּצָּבָ֔א

וְלֹא־יַעֲבֹ֥ר עָלָ֖יו לְכָל־דָּבָ֑ר

נָקִ֞י יִהְיֶ֤ה לְבֵיתוֹ֙ שָׁנָ֣ה אֶחָ֔ת

וְשִׂמַּ֖ח אֶת־אִשְׁתּ֥וֹ אֲשֶׁר־לָקָֽח:

When a man takes a new wife

He does/must not go out in the army

and it may not impose on him for any matter

He will/must be clear to his house for one year

and he will/must gladden his wife whom he took.

Midrash Halakhah focuses on the apparent redundancy of concluding phrase “whom he took”. Since halakhah ordinarily requires the consent of both parties for marriage, how might she have become his wife, if not via his taking her?  The answer given in Mishnah Sotah 8:4 is that the extra phrase extends the obligation even to a wife via levirate marriage.

“ושמח את אשתו” – זו אשתו;

“אשר לקח” – להביא את יבמתו

“he will/must gladden his wife” – this refers to his wife;

“whom he took” – to include his levirate wife.

This answer seems to point to another problem.  Why is it necessary to include a second mention of “his wife” at all?  Moreover, this redundancy seems related to the odd structure of the unit, which brings up “gladdening his wife” only after interposing a set of specific don’ts.  Compare Dvarim 20:7:

וּמִֽי־הָאִ֞ישׁ אֲשֶׁר־אֵרַ֤שׂ אִשָּׁה֙ וְלֹ֣א לְקָחָ֔הּ יֵלֵ֖ךְ וְיָשֹׁ֣ב לְבֵית֑וֹ

פֶּן־יָמוּת֙ בַּמִּלְחָמָ֔ה וְאִ֥ישׁ אַחֵ֖ר יִקָּחֶֽנָּה:

Any man who betrothed a woman but did not take-her-as-wife – he may/must go return to his house

lest he die in the battle, and another man take her.

Devarim 20:7 focuses exclusively on the man’s expectations, whereas the section in our parshah mentions only the woman’s expectations.  (Targum ‘Yonatan’ translates our verse as “he must rejoice with his wife”, but Rashi rejects this because the text is pointed vesimakh, which is transitive.)

This different focus may also explain the midrash halakhah’s approach to “a new wife”.  A beraita on Sotah 44a explains that this means “new to him”, so that it includes widows and divorcees, and excludes only remarriage to one’s own divorcee.  In other contexts, such as the recitation of Sheva Berakhot, the rabbis indicate that men’s emotional expectations are on average lower when they marry previously married women.  Yet here, there is no difference, because such women’s expectations are not lower. (Ibn Ezra reports that “some say” that we translate “new wife” as “virgin”, but this position has no impact in halakhah.)

Presumably, we can put the “new wife” together with “the wife whom he took” to create a composite legal set of wives, namely any wives, whether freely chosen or levirate, whether or not previously married, so long as they were not previously married to this husband. Husbands of these wives are exempt from army service and clear to their houses for the year after marriage, so that they may gladden their wives.

The simplest reading of this is that husbands are obligated to gladden their wives so long, and only so long, as they are exempt from army service.  This is the approach I had assumed, and it seems clearly taken by Rambam in Sefer HaMitzvot DO #214:

והמצוה הרי”ד היא

שצונו להתייחד החתן עם אשתו שנה תמימה,

שלא יסע חוץ לעיר

ולא יצא בצבא

ולא יעבור עליו דבר מהדברים הדומים לאלו [ל”ת שיא],

אבל ישמח עמה עד מלוא שנה מיום בואו אליה.

The 214th commandment is

that we are commanded that the groom be alone with his wife for a complete year

meaning that he may not travel out of the city

nor go out in the army

nor have anything similar imposed on him [see DON”T #311]

rather he must rejoice with her until a full year from the day he comes in to her

However, Rav Sabato’s reading is adopted by Sefer Mitzvot Katan (=SMK) #285:

לשמח את אשתו

כדכתיב ושמח את אשתו אשר לקח,

יש בעשה זה לאו, שנאמר ועונתה לא יגרע,

והנה כמה גדולה המצוה הזאת שהרי פטרתו תורה מליצא בצבא,

To gladden his wife

as Scripture writes: “He must gladden the wife whom he took”

This DO has within it a DON’T, as Scripture says “and her times of intimacy must not be diminished”

SMK reads the exemption from army service in the first year of marriage as a specific consequence of a general mitzvah to gladden one’s wife that has no expiration date.  The clear advantage of this reading is that it explains both the odd structure of our passage and the apparent redundancy; the last sentence is not the conclusion of the yearlong exemption from national service, but rather serves to put that exemption into the framework of a more general mitzvah.  (Rav Yerucham Fishel Perlow in his Commentary to the Sefer HaMitzvot of Rav Saadia Gaon suggests that this general mitzvah may be implied here but derived directly from other verses.)

However, Netziv in Haamek Davar uses the same structure to make a radical claim in the opposite direction.  He claims that the husband has the option, not the obligation, to use the time gained via exemption from service to gladden his wife.

“ושמח את אשתו

אינו מצות עשה לשמח את אשתו כל השנה הראשונה,

דזה אינו, ואפילו מדרבנן אינו מחויב לשמחה אלא שבוע אחד,

וכבר עמד ע”ז בס’ יראים, וכתב בזה”ל:

חייב לשמחה בכל דבר שיודע שיש לה שמחה עכ”ל,

ומשום שהיה קשה לומר דמצוה לשמח כל השנה בשמחת נשואין,

מש”ה פירש “ושמח” היינו שמחה בלב במלוי רצון,

 כמו “נתתה שמחה בלבי” ועוד הרבה,

אבל האמת דפי’ “ושמח את אשתו” אינו אלא רשות,

דיכול הוא לשבת בביתו ולשמח את אשתו אף על גב שכל ישראל בצער מלחמה.

He will gladden his wife –

This is not a DO to gladden his wife the whole first year,

as this is not so, and even Rabbinically his is only obligated to gladden her for one week.

Sefer Yereim already noticed this, and therefore wrote as follows:

“He must gladden her with anything that he knows gives her happiness”

Because it was hard to say that this is commanding to gladden all year with wedding celebration,

Yereim explains “he will gladden” as referring to internal joy and fulfilling her wishes

as in the verse “you have placed joy in my heart”, and many others.

But the truth is that “he will gladden his wife” it is only a permission,

that he is permitted to stay home and gladden his wife even though all Israel is in the suffering of battle.

One might suspect Netziv of being antiromantic.  But his next comment demonstrates the opposite:

“אשר לקח” –

טעם הוא שהזהיר הכתוב בזה,

משום דהיא חדשה לו ועדיין לא נשרשו בחיים,

ואם יסיח דעתו ממנה – יוכל להיות שינתק החבל לגמרי,

אבל בלי כפיה רשאי לצאת,

וממילא לא יצא

אם לא יהא ברור שישוב לאהבתה:

whom he has taken

this is the reason Scripture commands these exemptions,

since she is new to him, and they have not been rooted in life,

so that if he stops concentrating on her – possibly the cord will be completely parted.

But he is permitted to leave so long as there is no external compulsion,

and it will therefore turn out naturally that he will not leave

unless it is certain that he will return to her love.

It seems to me that Netziv held that love can only flourish in freedom.  Law can give us freedom from oppression, and thereby freedom to love, but law cannot make us love.  Moreover, no one healthy can be made happy by someone who is compelled to fulfill their wishes, so a general mandate to gladden one’s spouse would be self-defeating.

Netziv’s specific halakhic position is at best a minority, and the mainstream of Jewish tradition does not fully share his idealistic romanticism.  Rav Sabato had good reason for preferring SMK.

But Elul is the month of romance – Ani l’dodi v’dodi li – and therefore an excellent time for considering the power of Netziv’s underlying psychological claim, in both marriage and religion.

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(When) Should Halakhah Be Enforced?

by Rabbi Aryeh Klapper

America has a “wall of separation” between synagogue and state, whereas in Israel the civil courts can be called upon to enforce the orders of state-recognized Rabbinical courts (batei din mamlakhtiyim).  This difference was brought to public attention most recently when the Israeli police arrested a Masorati rabbi for failure to obey a beit din summons (not, as many reported, for performing an unauthorized wedding; that was the subject of the summons, not the cause for the arrest).  Such cases test whether Jewish, and specifically Orthodox, support for religious freedom in the U.S. is a substantive commitment or rather a pragmatic concession to the realities of life as a small religious minority. 

Here are two other ways in which the depth of that commitment can be tested. 

First, Israeli courts have the authority to impose sanctions such as confiscation of passports and drivers’ licenses or even imprisonment on men who refuse a beit din’s order to divorce their wives.  Do we support the utilization and even strengthening of such measures, such as the recent extension of this authority to Jewish non-citizens passing through Israel? 

Second, consider the opening of this week’s parshah (Devarim 16:18)

שֹׁפְטִ֣ים וְשֹֽׁטְרִ֗ים

תִּֽתֶּן־לְךָ֙ בְּכָל־שְׁעָרֶ֔יךָ

אֲשֶׁ֨ר יְקֹוָ֧ק אֱ-לֹהֶ֛יךָ נֹתֵ֥ן לְךָ֖

לִשְׁבָטֶ֑יךָ

וְשָׁפְט֥וּ אֶת־הָעָ֖ם מִשְׁפַּט־צֶֽדֶק

Shoftimand shotrim

you must place for yourself in all your gates

which Hashem your G-d is giving you

by tribe

They will be shofet the people mishpat tzedek.

Rashi defines the nouns shoftim and shotrim as follows:

שפטים = דיינין הפוסקין את הדין.

ושוטרים = הרודים אחר מצותם במקל ורצועה עד שיקבל עליו את דין השופט

Shoftim= judges who decide the law

Shotrim = those who enforce their commands with baton and strap until they accept the judge’s ruling

 This verse seems to mandate the establishment of an executive – call them police, sheriff, or marshals – tasked with enforcing the rulings of the halakhic judiciary.

Rabbi Shmuel David Luzzatto (SHADAL; his commentary is now available online at alhatorah.org) sharply disagrees with Rashi.

אין ספק כי השוטרים אינם שליחי ב”ד הרודים במקל

כי במצרים הרודים במקל היו נקראים נוגשים, לא שוטרים

ולמעלה (א’, ט”ו) אמר

“ואקח את ראשי שבטיכם אנשים חכמים וידועים ואתן אותם ראשים עליכם וגו’ ושוטרים”,

ובדברי הימים ב’ י”ט:י”א

“והנה אמריה כהן הראש וגו’ וזבדיהו הנגיד וגו’ ושוטרים הלוים לפניכם”,

וביהושע ח:ל”ג

“וכל ישראל וזקניו ושוטרים ושופטיו”,

והנה השופטים היו דנים במה שבין אדם לחברו, או בבוא עדים על איש שחטא,

והשוטרים היו משגיחים על שלום המדינה וגוזרים גזרות והנהגות על העם

There is no doubt that the shotrimare not the agents of beit din who enforce via baton

because in Egypt the baton-enforcers were called nogsim, not shotrim

and above (Devarim 1:15):

Moshe said: “I took the heads of your tribes, men wise and known,

and I placed them as heads over you . . . and as shotrim”,

and in II Chronicles 19:11:

“Here Amaryah the Priest and Zevadyahu the nagid . . . and the Levites as shotrim before you

and in Yehoshua 8:33:

“and all Israel with its z’kenim and shotrim and shoftim.”

So the shoftim judged in interpersonal matters, or when witnesses came that a man had sinned,

while the shotrim would oversee the peace of the state and decree decrees and practices on the people.

Shadal may have a strong textual case against limiting the role of the shotrim to the physical enforcement of court orders. But his argument that they constituted a separate branch of government charged with issuing decrees has no textual basis at all!  Rather, it seems to me, his interpretation may reflect a political conviction that the judicial and legislative powers of the state are best separated, or else he had lots of terms for leaders and needed to find something unique for each category to do.

 Rashi’s reading however has a strong contextual basis.  Our verse begins by mandating the appointment of both shoftim and shotrim, and yet concludes that their single purpose is to be shofet.  This strongly indicates that the role of the shotrim is subsumed with that of the shoftim, and that they are support personnel rather than independent actors.

However, support personnel need not be tasked with enforcement specifically.  I learned from Rabbi Abraham Halbfinger of blessed memory that justice always depends on efficient administration.  The best of batei din with the best of intentions, handling divorce and conversion cases with great sensitivity and deep personal attention, but with a filing system that often misplaces vital documents, will produce more and worse long-term injustices than an impersonal and callous beit din which keeps perfect records.  One cannot expect tzedek from the best of shoftim unless they have the right personnel and system for keeping track of vital documents, or shtarot.  Some of the worst problems with batei din in both America and Israel are the result of underfunding such vital background positions, and/or of underappreciating how important it is to fill those positions well. 

But it is also true that justice ultimately also requires enforcement.  Bad people do not do the right thing by choice when self-interest points the other way; and good people can be stubborn in their mistakes, for various reasons.  A system of law that depends on entirely voluntary submission to the law and to judicial authority will end in the tyranny of bad people.  This is why competent American batei din do not agree to hear financial cases unless both sides sign secularly enforceable binding arbitration agreements. Otherwise, bad people will take good people to beit din and if they win, collect, and if they lose, simply move on to secular court.

At the same time, enforcing the law when it lacks broad social support usually generates different sorts of injustices.  It becomes a tool of power – whether in the hands of a minority or a majority – rather than a tool of justice. 

Halakhah regarding marriage, divorce, and Jewish identity is therefore often trapped within a conflict of values.  On the one hand, the fact that so many Jews reject the authority of halakhah means that efforts at enforcement are often, and often correctly, perceived as powerplays by specific subcommunities rather than as pursuits of justice.  On the other hand, leaving the area completely voluntaristic leaves one spouse at the mercy of another at the moment of greatest conflict and antagonism, and leaves converts subject to the whims of particular subcommunities, bureaucrats, and individuals.

One might argue that halakhah should meet these challenges by divesting itself of all non-personal implications.  This seems to me both impossible and wrong.  Jewish status is inherently a communal matter; to argue for the complete separation of religion and identity is to undo the fundaments of Judaism.  I think it is also reasonable for marital status to be an issue of communal concern and recognition.  The breakdown of a common understanding of marriage may make that an untenable position in the progressive West; and yet that most American liberals still seek state recognition of a broader range of marriages, rather than advocating for the abolition of marriage as a state-cognizable category, may say something important (even for those of us who think that the time has come for the state to completely remove itself from the business of marriage, and either to treat people purely as individuals, or else to let them form economic/domestic partnerships as they wish without any notion that such partnerships entail emotional or sexual elements or commitments).

There cannot be true mishpat tzedek without shotrim.  Often this means simply that our society cannot achieve true mishpat tzedek.  Often nothing positive will be accomplished by appointing more shotrim, or by giving the existing shotrim more power. Power contributes to tzedek only if it is grounded in legitimate authority, and legitimate authority requires the consent of the governed.

There is no reason or basis for aspiring to have shotrim enforce all of halakhah on a community which rejects its authority.  An immediate task for a halakhically committed community is to build moral authority for the Law in the areas where halakhah requires enforcement to produce tzedek.  To do that, we need to demonstrate our own commitment to tzedek within halakhah.  In both Israel and America, this means putting serious time, money, attention and political capital into building a beit din system that is highly professional and capable of building moral consensus across communities.

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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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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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