Head versus Heart

I have been reading Richard A. Posner’s How Judges Think. Posner notes that a judge’s response to a case “is generated by legal doctrine, institutional constraints, policy preferences, strategic considerations, and the equities of the case, all mixed together and all mediated by temperament, experience, ambition, and other personal factors.” Thus, personal predilections foster both a Judge Shammai (focused on legal doctrine and institutional constraints) and a Judge Hillel (tilting toward policy preferences and concerned with the equity of the case).

Whether judges “think” at all is no more certain than whether you or I do. It has been suggested that our opinions may be more emotional reactions than intellectual conclusions. In an article in tomorrow’s NY Times Magazine, Judith Werner cites Richard Hofstadter’s classic Anti-Intellectualism in American Life wherein he wrote that ‘Intellect is pitted against feeling . . . [and] against character, because it is widely believed that intellect stands for mere cleverness, which transmutes easily into the sly or diabolical.” In Warner’s article, whether or not judges think is not the point; the point is that judges facing senate confirmation hearings are cautioned not to risk “intellectually outshining the senators” (in other words, don’t let them see you think).

As this blog is at least ostensibly intended to focus on Jewish thought and/or Talmudic distinctions and processes, I will digress momentarily. The aforementioned Hofstadter is from the generation of Jews (on his father’s side) who were raised by parents for whom English was most certainly not their first language. Like my favorite non-Jewish "Jewish" straight man Bud Abbott, Hofstadter had one Jewish parent but was raised as a Lutheran.

In the 1940s, my English teacher, Alfred Kazin, often sat next to him in the great reading room of the 42nd Street Library. In Kazin’s journal, he wrote of Hofstadter, “His German-background Lutheran mother had died early; his Polish-Jewish father had given his gift for Yiddish an irresistible turn. Between two such worlds--who would have guessed that the middle name of this former Lutheran altar boy was Irving?--he had become the amused outsider who looked Gentile, was married to a Jew, and whose friends were regularly Jews.”

Another entry in Kazin’s journal on Hofstadter’s wife, Felice, will get me back to my main subject today-- head versus heart. Felice was one of the first women to be accorded the status of writer (as opposed to researcher at Time Magazine: “Felice loved being important to Time more than she could ever love Time itself. Writing up a frightful industrial accident in which a worker had been pressed to death by a machine, she had thought it clever to write that the victim could now be slipped under the door. On her way home she felt horrified by her callousness, rushed back to the office to change the piece, and found the managing editor roundly congratulating her.” Here indeed is an apt example of the heartlessness of clever wit that is associated with the moral bankruptcy of intellect. Anti-intellectualism may be America’s reaction to the Enlightenment, but many of us are so well educated that we are both for it and against it.

A recent current event illustrates the quandary. The decision by the United States District Court in Boston on Thursday essentially nullified the Federal Defense of Marriage Act and affirmed the right of the state of Massachusetts to guarantee rights to same-sex couples. What combination of “legal doctrine, institutional constraints, policy preferences, strategic considerations, and the equities of the case” led to this decision? As Kirk Johnson points out in today’s NY Times, the ruling affirms states’ rights and limits the authority of the federal government (if it is upheld). As such, it should be applauded by those whose primary agenda is to limit the power of the federal government. Of course, many of these are the same people who also insist on a traditional definition of marriage. The former is an intellectual position and the latter is an emotional response.

Personally, I have never understood why marriage is regarded as a civil matter at all. It has always seemed to me that any state or federal definition of marriage is tantamount to the legislation of a religious tenet that is particular to some but not all denominations of Judaism and Christianity (and probably all Muslims-- at least I am not aware of any Imams who perform same-sex commitment ceremonies). I share this understanding with the Gay rights groups who condemned the persecution of Fundamentalist Mormons for practicing polygamy. (Ironically, we must note that the support was not reciprocated: the polygamists regard any gay relationship as a sure path to eternal damnation.) By this line of reasoning, any definition of marriage must be considered unconstitutional and the state should get out of the business of issuing marriage licenses and focus solely on guaranteeing equal protection under the law to all married couples (or swarms, if we have the stomach to include the Mormon fundamentalists!), regardless of how they came to be united.

In any event, states rights is an unsatisfactory principle on which to hang a campaign to ensure equal treatment under the law. The principle that was last used in arguments to delay the adoption of federal laws to prohibit racial discrimination is not going to be our friend in the long run. But what options were open to the United States District Court in Boston? For this judge, the equity of the case weighed more heavily than the legal doctrine; institutional constraints were perhaps ignored in favor of strategic considerations. It will all undoubtedly end up in the Supreme Court, where an affirmation on the basis of states rights would be a stunning victory for gay rights in Massachusetts and a blow to prospects for a federal guarantee of gay rights. Are there other legal doctrines that permit affirming the decision? Is the court likely to reject the reasoning but not overturn the decision? If they do, will they return the case to Boston to be reargued or overturn the Defense of Marriage Act? Stay tuned to find out how these judges think.

The Second Candle

The first candle: Ambassador Michael Oren described J Street as "a unique problem in that it not only opposes one policy of one Israeli government, it opposes all policies of all Israeli governments. It's significantly out of the mainstream," he said. "This is not a matter of settlements here [or] there. We understand there are differences of opinion," Oren said. "But when it comes to the survival of the Jewish state, there should be no differences of opinion. You are fooling around with the lives of 7 million people. This is no joke"

The second candle: Jeremy Ben-Ami of Jstreet, questioned by a reporter on Oren's remarks, replied, "Perhaps if he would meet with us, he could actually find out what we stand for, rather than having to misrepresent our position. I don’t quite understand how it is in the State of Israel’s interest to look at J Street as a problem, to write off an organization that represents a large number of American Jews."

I will not at this time go into all the nuances this exchange evokes. Nor will I do an objective analysis of the merits and faults of the two respective positions. But what I will do is share a personal reflection on how this exchange challenges my understanding of the meaning of Hanukkah:

If Michael Oren were to cast his remarks within the context of the story of Hanukkah, he would certainly cast himself in the role of Judah Maccabee and the people of Jstreet as the Hellenized Jews who lived in another country-- who he is in effect charging with looting the Temple. I hesitate to say this but if I am to be totally honest I have to say that if I found myself cast back into time within the context of the ancient story, I am more temperamentally suited to be a Hellenized Jew than a Maccabee. And when I think of the story of Hanukkah as the story of a civil war between two types of Jews, I don't know what there is to celebrate, especially when it is plain to anyone who cares to look that the war between the Jews continues.

Reflections on an Old Clawfoot Bathtub

It's actually for a person's own good that he can't fathom or distinguish the difference between good and evil when he's a child. For if he could . . . he'd realize how much more self-sufficient adults were than he . . . And he'd die from worry and despair realizing the contrast between himself and adults.

--Bachya ibn Pakudeh, The Duties of the Heart (2:5)

In an Inn in Massachusetts, as I struggled to climb out of an old clawfoot bathtub, I reflected on how physically vulnerable I am destined to become should I be blessed with many more years. If climbing out of a bathtub is a challenge even now . . . (!) Yet also I remembered a time over fifty years ago when an ordinary bathtub seemed as huge as this clawfoot tub is for me today. I surprised my mother when I was quietly sitting on the toilet and she emerged from the shower completely naked, not expecting to see me. How lovely she looked! And how embarrassed!

At the bookends of life every mountain is harder to climb; every stream more difficult to cross. The scale of this bathtub catapulted me simultaneously to my beginning and my end. How much less self-sufficient we "adults" are than we sometimes realize!

Guilt Incurred Unwittingly

In this week’s Torah portion, in Chapter 4 of Leviticus, we find the means to atone for guilt that is incurred unwittingly. For example, verse 2, “when a person unwittingly incurs guilt in regard to any of God’s commandments about things not to be done, and does one of them.”

It occurred to me that it is much easier to see how another person unwittingly incurs guilt but much more difficult to catch oneself. I am sure that my political and spiritual affinities carry with them assumptions about the character and motives of people who I see as a threat and that these assumptions are a barrier to performing some much needed tikkun olam. How do I get past these assumptions, not simply to atone for guilt incurred unwittingly, but to transcend it?

Verse 13 strikes me as especially timely because it is concerned with when “the whole community of Israel that has erred and the matter escapes the notice of the congregation, so that they do any of the things which by God’s commandments ought not to be done.”

There was an article in last Sunday’s NY Times that described the divide between two philosophies of military ethics. On the one hand, there is the code of military ethics and on the other hand, the military’s chief rabbi, Brig. Gen. Avichai Rontzki, who took his stand following a classical Hebrew text that says: “He who is merciful to the cruel will end up being cruel to the merciful.” Rabbi Rontzki wrote that what others call “humanistic values” are simply subjective feelings that should be subordinate to following the law of the Torah. And he has also said that the main reason for a Jewish doctor to treat a non-Jew on the Sabbath, when work is prohibited but treating the sick and injured is expected, is to avoid exposing Diaspora Jews to hatred. It is easy for me to imagine how such a person might unwittingly incur guilt.

To be perfectly frank and rather harshly judgmental, such a person is the Jewish version of a holocaust denier. But rather than denying that the Holocaust occurred, such a person is denying that the actions that result from his own words are another sort of holocaust. I understand that this is not an evil person and that the guilt he incurs, he incurs it unwittingly. What I don’t understand is how he comes to see or feel the guilt; the gap between unwitting action and self-awareness seems too vast for me.

The specific commandments that one might unwittingly violate depend entirely on which commandments we value higher than others. We choose between the sanctity of land and the sanctity of life. Between the sanctity of Jewish life and the sanctity of all life. We chose unconsciously to hold one ideal and become blind to another. And, I repeat, it is much, much easier to see how another person unwittingly incurs guilt than to catch oneself.

RABBI EMANUEL RACKMAN Z'L

Before the Law

The parable begins, "Before the law stands a door-keeper. A man arrives and asks to be admitted . . ." It is a well known story of Kafka's that ends badly because the man from the country (the am haaretz) has more faith in the authority of the door-keeper than he has in himself.

These reflections were prompted by the obituary of Rabbi Emanuel Rackman, who died this week in Manhattan at 98 years of age. Reading his obituary I was convinced that Rabbi Rackman could stand up to any gatekeeper. He earned a law degree from Columbia University in 1933, ordination as a rabbi in 1934, and a doctorate in public law in 1952. Moreover, he served in the U.S. Air Force during World War II, where he encountered the Holocaust firsthand in his role as military aide to the European Theater commander's special adviser on Jewish affairs.

For my purposes, the story gets even more interesting when he was recalled to active duty in 1951 but discovered that the "doorkeeper" (in the form of the U.S. government) had stripped him of his security clearance because of his public opposition to the sentences of death in the Rosenberg case and his public support of Paul Robeson. Rabbi Rackman was no am haaretz. He waited on no gatekeeper: Given the choice of an honorable discharge or a military trial, he insisted on a trial and won his acquittal and a promotion. This man knew which gate was meant for him and he walked directly through it.

This morning I studied Zohar (as I often do on Sunday mornings) with two rabbis and another am haaretz (though one more knowledgeable than myself), and the question came up about whether today's orthodox Judaism is rigid or elastic compared to what it had been at the dawn of rabbinic Judaism. I wish I had had Rabbi Rackman's obituary to reference during that study session this morning, especially this quote: “A Jew dare not live with absolute certainty not only because certainty is the hallmark of the fanatic and Judaism abhors fanaticism, but also because doubt is good for the human soul, its humility, and consequently its greater potential ultimately to discover its Creator.”

Mirror, Mirror, On the Wall

I have had a great deal of difficulty attempting to identify the underlying philosophy of the Bush administration. After seven years, it does not get any easier. For example, in the lead story of the October 10 issue of the Forward, it is reported that the Bush administration, unsurprisingly, takes a position against efforts by Muslim countries to expand the blasphemy laws that are in place in their own countries into a U.N. resolution. The surprise is that the position is based on the individual right to free expression, which is not something that the Bush folk have spent much time defending in the past seven years, especially when it comes to individual religious expression.

John Hanford, the Bush administration ambassador at large for religious freedom (imagine!), accused the Muslims of seeking "to weaken the freedoms of religion and expression by restricting the rights of individuals to share their views or criticize religions." The logical extension of this argument would seriously inhibit legislatures from basing any laws or regulations on religious beliefs alone. I think this is a fine idea, but I don't think that the Bush administration agrees.

For example, this administration would outlaw same-sex marriages even though marriage itself is a spiritual union between two individuals and many churches sanctify gay unions.

For example, this administration would outlaw abortions based on the religious belief that life begins at conception. (We can only be grateful that they aren't looking to legislate around masturbation!) Many religious leaders support a woman's right to choose. The Talmud suggests that a fetus is never a person, but a limb of the mother that may be amputated for the health of the mother.

For example, this administration would restrict access to birth control and forbid any health agency working in other countries seeking federal funds from dispensing information on birth control because they believe that intercourse is intrinsically for the purpose of procreation. This is a position of some religions but not based on anything but Scripture.

The Bush administration has made the philosophical leap to condemn countries that attempt to legislate their beliefs, but has yet to look into the mirror or into their own souls.

Three more months . . .

What Must We Teach Our Children Before They Can Read?

MISHNAH. Course material and instruction shall emphasize that the pupil has the power to control personal behavior. Pupils shall be encouraged to base their actions on reasoning, self-discipline, sense of responsibility, self-control, and ethical considerations, such as respect for oneself and others. Course material and instruction shall teach pupils to not make unwanted physical and verbal sexual advances and how to say no to unwanted sexual advances and shall include information about verbal, physical, and visual sexual harassment, including without limitation nonconsensual sexual advances, nonconsensual physical sexual contact, and rape by an acquaintance. The course material and instruction shall contain methods of preventing sexual assault by an acquaintance, including exercising good judgment and avoiding behavior that impairs one's judgment. The course material and instruction shall emphasize personal accountability and respect for others and Pupils shall be taught that it is wrong to take advantage of or to exploit another person. [Actual language of 2003 Illinois legislation.]

GEMARA. Reb Johannan ben Cain said in the name of Rove Karl, "A child should have no knowledge of such matters. It would be better if they went about unaware of how to defend their purity." Reb Baruch HaBama said, "Let them know what they need to know and no more."

Aggadic Politics

On the eve of the launching of Sefer Ha-Bloggadah, where the nature of aggadah itself will be the first topic for consideration, when it is also the eve of the Democrat's convention, my thoughts naturally drift to the role of aggadah in the shaping of American politics.

What, after all, is aggadah, if not the parable by which the truth is taught to the am haaretz? And what is a presidential election but a struggle to persuade the am haaretz to vote for this one over that one?

Last week we witnessed the spectacle of the presumptive candidates of the two major parties submitting sequentially to questioning by the founder and senior pastor of the Saddleback Church in Lake Forest, California. And there is no doubt in my mind that the most important question posed to the two candidates was, "At what point does a baby get human rights, in your view?" One said, "I think that whether you're looking at it from a theological perspective or a scientific perspective, answering that question with specificity, you know, is above my pay grade." The other said, "At the moment of conception." The latter was met with applause.

I was saddened to be reminded that this is the standard by which our leaders are selected. The decisive issues will not be who can best manage our resources and represent us to the community of nations, but where does each stand on abortion, gay marriage, and evolution. It is as George Lakoff has been insisting for years: our ideas about politics and morality are not ideas at all, but emotional responses. In other words, our political decisions are not rooted in halakhah; they are purely aggadic.

As Lakoff has suggested (using different language), the Republicans have become masters of aggadic argument, while the Democrats have persisted in appealing to reason.

The rabbis take Ecclesiastes 6:2 as a sign-post warning of the danger of becoming a master of aggadot. Such a one "does not have the power to prohibit or permit, to declare unclean or to declare clean." The rich gift from God is the "evil I have observed under the sun" in Ecclesiastes 6:1. It is the nuance and ambiguity that can create a vivid teaching through paradox and in the process teach confusion. Evolution is "junk science"; life begins at conception; homosexual love is unnatural. These masters of aggadot campaign as if they will turn opinion into law and by extension make those they consider to be heretics into criminals.

There are masters of aggadot who lead voters from clear directions such as concern over how they will heat their homes or protect the value of their property or preserve their savings so that they can securely retire; these "masters" prey upon their fears that liberty is on the slippery slope to libertine. Their aggadot come to teach one despicable lesson: to fear freedom.

The rabbis warn us not to master all aggadot, but to study only the exemplary aggadot -- those "which are readily understood and deemed right by all men." I heard such an aggadic text just yesterday: "Tragedy tests us — it tests our fortitude and it tests our faith. Here's how Joe Biden responded. He never moved to Washington. Instead, night after night, week after week, year after year, he returned home to Wilmington on a lonely Amtrak train when his Senate business was done. He raised his boys — first as a single dad, then alongside his wonderful wife Jill, who works as a teacher. He had a beautiful daughter. Now his children are grown, and Joe is blessed with five grandchildren. He instilled in them such a sense of public service that his son Beau, who is now Delaware's attorney general, is getting ready to deploy to Iraq. And he still takes that train back to Wilmington every night. Out of the heartbreak of that unspeakable accident, he did more than become a senator — he raised a family. That is the measure of the man standing next to me. That is the character of Joe Biden."

I would prefer to live in a world where we chose our leaders through a process of rational deliberation. But as this is clearly not the case, I am pleased that I have found a candidate who can construct a teaching that must be readily understood and deemed right by all men. I would far rather be moved to tears by a candidate I can vote for than moved to fury by one who fails to convince me he has the power to prohibit or permit, to declare unclean or to declare clean.

The Religion of Secularism

From Mitt Romney's "Faith in America" speech (December 6):

We separate church and state affairs in this country, and for good reason. No religion should dictate to the state nor should the state interfere with the free practice of religion. But in recent years, the notion of the separation of church and state has been taken by some well beyond its original meaning. They seek to remove from the public domain any acknowledgment of God. Religion is seen as merely a private affair with no place in public life. It is as if they are intent on establishing a new religion in America – the religion of secularism. They are wrong.

Public acknowledgment of God "in the public domain" is all well and good, but the problem is that state-sanctioned acknowledgment of religion may, by accident or design, either compel innocent bystanders to practice someone else's religion or deny them the ability to practice their own religion. The December 14 issue of the Forward provided a good example of how this has worked in the past. This paper has a feature on its back page called ForwardLooking Back. It features brief excerpts from its archives from 100, 75, and 50 years ago. One hundred years ago, the news was as follows:

This week began with a giant whimper and not a bang, because of a new ruling that legally designates Sunday as a day of rest. And they mean it: Between the ultra-religious Catholicism of Judge O'Gorman and the club of Police Chief Bingham, nary a peep was heard out of weddings, parties, theaters, movies, dance halls, concert halls or saloons this past Sunday in New York City. The town was dead: it was like a terrible Yom Kippur. The city's streets were packed with people who had nothing to do but wander about. And at weddings in Manhattan and Brooklyn, they danced without klezmorim.

Imagine living in a time or place that the law prohibited having a band play at your wedding celebration! The people who "legally" designated Sunday as a day of rest got married on Saturday. The people who were obligated religiously to observe their day of rest on Saturday, were legally forbidden to hire a band on Sunday.

A hundred years ago, the Jewish dilemma would be of no concern to the powers that passed such laws. The mainstream belief was that Jews were a separate race: Jews were not white people, and only white men were privileged to share the "self-evident" truth in the constitution that all men are created equal. It is more puzzling that today, when gay people suffer less discrimination and marginalization than the Jews and blacks of a hundred years ago, they are not only denied the basic legal protections and benefits afforded to heterosexual households that are founded by a religious vow of lifetime commitment, but they are the target of specific schemes to deny them the right to take on this basic religious vow that many ministers and rabbis would willingly sanctify.

Marriage vows are, after all, religious vows first. Secondarily, they convey legal privileges and obligations. Those who would limit the legal definition of marriage are bringing a theological argument into the legislatures and courts, thus violating the separation we have made to protect religion from state interference; the very separation that Mitt praised in his "Faith in America" speech.

Even so, it seems that Mitt would protect us from our liberal churches and synagogues:

"We need an amendment that restores and protects our societal definition of marriage, blocks judges from changing that definition and then, consistent with the principles of federalism, leaves other policy issues regarding marriage to state legislatures." (Gov. Mitt Romney, Testimony, United States Senate Committee On The Judiciary, 6/22/04)

How do we rationalize federal protection of "societal definitions" when these definitions are contradicted by our religious communities? How do we reconcile "We separate church and state affairs in this country, and for good reason" with protecting "societal definitions"? As long as there are ministers and rabbis who are willing to sanctify and recognize gay marriages, it should take no less than the repeal of the First Amendment to prohibit gay marriage.

The threat to our constitution does not come from the "religion of secularism." Mitt turned the constitution on its head when he proclaimed that freedom requires religion; of course, it is the other way around: religion requires freedom. Constitutional amendments that "protect" societal definitions threaten the freedom of religion. Paradoxically, a government free from religion is absolutely essential for the guarantee of religious freedom. It should be self-evident to all that the federalization of religion that Governor Romney proposes would be a far greater threat to our liberty than any religion of secularism.

Stillborn Rationalism?

Note: This is the seventh (and final) post in a series of notes that I wrote as I read The Stillborn God by Mark Lilla. The posts should be read in the following sequence: (1) Stillborn God?, (2) Why Believe?, (3) The Values Test, (4) Torah Rules, (5) "What Makes Man Religious at All?", (6) Genuine Religion vs Idolatry, then the following.

I have wanted to resume blogging for some time but felt obliged to finish this series of posts on Lilla's book before moving on to tackle other issues. Obliged to whom? Probably to Lilla. It was unfair to leave the many critical observations I made in the earlier posts in this series without balancing them by expressing my appreciation that the later sections of his book answer many of the questions that I raised as I wrote in the midst of my reading.

I finished the book several weeks ago and did not take detailed notes, so this will not satisfy my own standard for posting. It is simply better than leaving the other posts out there unresolved before moving on.

So, briefly: I now understand that Lilla's lack of references to Jewish philosophy in the first half of his extended consideration of the decline of political theology in Europe does not derive from an ignorance of, or lack of respect for, Jewish philosophy, but from his understanding (no doubt a correct understanding) that the Christian philosophers who influenced the evolution of politics away from its theological foundations were not themselves referencing any Jewish philosophers. When Lilla gets to the 19th Century, a time when Jews were finally welcomed as citizens in Europe, the Jewish contributions to philosophy and political theory are well represented. Ironically perhaps, the possibility of assimilation provided a fertile ground for the development of an alternative Judaism-- self-labelled "Reform" Judaism-- that related to traditional Judaism as Protestantism related to Catholicism. This bifurcation of Judaism thus opened doors for diverse Zionist impulses that replicated the Christian argument about whether a state should be based on religious and/or tribal affiliation.

Ultimately, Lilla's "Stillborn God" is the deracinated theology that portrays "religion as socially useful when rationally and morally reformed" (p. 300). Unfortunately, since terms like rational and moral will probably never be universally understood, the enforced separation of church and state will be utopian for some and dystopian for others.

The tension between politics and religion will clearly be the elephant in the room throughout the presidential campaigns that are now in full swing, and it is to that conversation that I intend to turn in my next postings.

Genuine Religion vs. Idolatry

Note: This is the sixth post in a series of notes that I am writing as I read The Stillborn God by Mark Lilla. The posts should be read in the following sequence: (1) Stillborn God?, (2) Why Believe?, (3) The Values Test, (4) Torah Rules, (5) "What Makes Man Religious at All?", then the following.

In my previous post, I wondered if it can properly be said that Hobbes effected any change in the discussion among theologians or only that he opened a discussion about theology among philosophers. On page 100, Lilla apparently concludes that the answer is that the former indeed cannot be said. Hobbes, he writes, "did not think it possible to liberalize and enlighten the Christian churches from within."

The question of whether there is a link between "genuine and idolatrous religious behavior" raised by Lilla on page 69, which also went unanswered through the reading covered in the last post, may be answered in the manner that Locke and Hume extended the philosophical challenge opened by Hobbes. At least Locke "thought it both necessary and possible to convince the Christian churches to liberalize themselves, doctrinally and organizationally." And Hume "could write as if this revolution in human self-orientation had already taken place."

Tolerant churches, coexisting peacefully, none insisting on an exclusive franchise on the ultimate truth-- this is indeed a religious sensibility that has shed all idolatrous trappings. Thus, in just three pages we have gone from a life that is nasty, brutish and short to a revolution in human self-orientation. As I can only take into account what I have read to this point, I can only hope that when I read further tomorrow I will not find that Lilla has yadda yadda'd the most interesting part.

"What Makes Man Religious At All?"

Note: This is the fifth post in a series of notes that I am writing as I read The Stillborn God by Mark Lilla. The posts should be read in the following sequence: (1) Stillborn God?, (2) Why Believe?, (3) The Values Test, (4) Torah Rules, then the following.

On page 69, Lilla asks the question that is set at the top of this post. He goes on to ask, "Is there a link between genuine and idolatrous religious behavior?" But before answering that question, he makes an assertion that I must dispute: "Thinking about such behavior was more highly developed in Christianity than in Judaism and Islam, no doubt because it faced a double polemical challenge from its very inception: against Roman paganism on the one side and Judaism on the other."

The "double polemical challenge" that Christianity confronted was not unique. The Talmud, for example, is a rich source of thinking about "such behavior." The rabbis who lived in the early days of Christianity were also challenged by Roman paganism and by sects who, like Christianity, adopted the Torah as their foundation document. Early references to Judaism's response to Christianity are simply harder to find, mainly because Christian political theocracies controlled the printing presses and suppressed Jewish texts that challenged the legitimacy of Christianity. (For a history of the suppression of Jewish sources and several samples of the suppressed text, see, for example, Printing the Talmud: From Bomberg to Schottenstein, edited by Sharon Liberman Mintz and Gabriel M. Goldstein, Yeshiva University Museum, 2005; and Jesus in the Talmud by Peter Schäfer, Princeton University Press, 2007.

I am much less familiar with the Muslim experience, but expect that their own encounters with the Crusaders's swords must have prompted some thinking about "such behavior."

Lilla credits Christianity with evolving, beginning in the Renaissance, to incorporate "reason" into its lexicon. Is it churlish to note that when Maimonides did that for Judaism it was long before the Renaissance? Or that the culture that provided the intellectual space for Maimonides to be a major Jewish thinker was Islamic? Could one say that Christianity should at most be credited with catching up?

We are now one quarter through Lilla's text and at a pivotol moment in his text; for after having provided this brief romp through the unfolding state of the Christian world view, Lilla introduces Thomas Hobbes. And what an introduction! After musing, "There is more darkness in religion, perhaps a vast kingdom of darkness, than is dreamed of in Stoic philosophy," Lilla proclaims, "The greatest explorer of that darkness was Thomas Hobbes."

Hobbes's great achievement, according to Lilla, is to change the "traditional subject of theology-- God and his nature-- . . . to that of man and his religious nature." I wonder, however, if it can properly be said that Hobbes effected any change in the discussion among theologians or only that he opened a discussion about theology among philosophers.

Alas, perhaps Lilla is not describing the Christian rise from darkness into the light at all. Perhaps Hobbes's philosophy has no impact on theology, but provides instead a forum that no theologian would chose to enter. I don't know. I write these words as I read. My reactions only take into account what I have read to this point. Perhaps these doubts will be laid to rest. Perhaps they will multiply. Tune in later this week.

Torah Rules

Lilla stumbles when he asserts that "When the ancient Hebrews were an independent kingdom, they had been ruled exclusively by the Torah-- that is, by divine rather than human law" (p. 56). If he means the written Torah, it was adequate for managing a Temple service that was based on offerings of grain and animals, but it falls short of being a comprehensive legal code. If he means the oral Torah, it suggests that he is unaware that it developed no earlier than Christianity. And while it is certainly true that a scriptural "justification" was claimed for every regulation in the oral Torah, this was often at the expense of the plainest meaning of the text; for example, the Rabbinic transformation of "an eye for an eye" to be monetary damages.

Lilla stumbles further when he continues: "But Christianity was not law-based, at least not in that earlier sense; it preserved the Decalogue but abolished the highly developed system of Jewish law in favor of a law of the heart." It is a Christian assertion that Christianity abolished Jewish law. Yes, it turned its back on the covenantal and priestly Judaism of its time, but that on which it turned its back was itself far less than the legal code that Judaism ultimately developed. Halakah did not precede Christian political theology. Hillel and Shammai laid the foundation for Rabbinic Judaism within a hundred years of the birth of Christ. The development and codification of Rabbinic Judaism unfolded simultaneously with the development of Christianity. Christianity could not abolish what had not preceded it.

Both Jew and Christian faced the same existential dilemma at the same time: the Torah could only serve as a blueprint if it was read esoterically, which is what the "New" Testament and the Talmud each did; the former attempting to step out of history while the latter remained firmly embedded in it, but both imposed a forced "deeper" reading than the surface of the text suggested. (One of my favorite study partners suggests that the dominant Jewish reading was halachic and the dominant Christian reading was aggadic. The important point for me is that the text was necessary but not sufficient for either interpretation.)

At this stage of development, the most important thing that Jew and Christian had in common was the unquestioned assumptions that the meaning of life was based in divine revelation, and that no meaningful order was possible that was not based on the revelation. Of course, there is irony that the ones who first believed that history had ended (the Christians) became a major historical force when they ultimately chose the sword as their means to resolve doctrinal disagreements. The Jews, on the other hand, were so far removed from power that they could be content to conclude most doctrinal disputes by declaring that "these and those" are both the words of God. The Jews never led an Inquisition.

The demand for esoteric readings only increased in confronting the Enlightenment. In the face of science's increasingly sophisticated understanding of the nature of the cosmos, Lilla cites Pascal (p. 63), who bravely reflected, "It is not only just but useful for us that God be partially hidden." Jewish sources confronted the dilemma of a hidden God hundreds of years ahead of Pascal. Moshe Halbertal, in his new book, Concealment and Revelation, traces the tradition of a hidden knowledge to the earliest Talmudic readings of Torah. From Bereshit Rabbah:

R. Yosi beRabbi Hanina said . . . In human practice, when an earthly monarch builds a palace on a site of sewers, dunghills, and garbage, if one says, "This palace is built on a site of sewers, dunghills, and garbage," does he not discredit it? Thus, whoever comes to say that this world was created out of tohu and bohu and darkness, does he not impair [God's honor]?

I doubt Halbertal would object to comparing this teaching to Pascal. But Lilla seems unaware that concern for the incompleteness of the revelation goes back to the dawn of theology. He asserts that "modern science broke an age-old link between God and man" (p. 65), but I think that the most he can establish is that it opened the door to philosophies and political systems that had no ties to theology. When science confronts scripture (as for example when the tohu and bohu of this week's parsha are interpreted by a physicist), even if it appears to "impair God's honor," it can still be affirming that there is an embedded revelation, though perhaps one that is yet to be revealed.

The relationship between theology and politics may likewise be hidden in this time and place, and the danger of revealing it, as much to our own as to God's honor. Science has merely peeled away another layer of onion skin between us and God's hidden majesty.

The Values Test

James Dobson, on the OP-ED page of today's NY Times, wrote of "a meeting that occurred last Saturday in Salt Lake City involving more than 50 pro-family leaders." Those last two words jumped out at me; what exactly is a pro-family leader? And, in this polarized society, who are the anti-family leaders that pro-family leaders are called to stand tall and righteously oppose?

Patient readers discover the answer in the penultimate paragraph of his essay:

The secular news media has been reporting in recent months that the conservative Christian movement is hopelessly fractured and internally antagonistic. The Los Angeles Times reported on Monday, for example, that supporters of traditional family values are rapidly “splintering.” That is not true. The near unanimity in Salt Lake City is evidence of much greater harmony than supposed.

Translation: Pro-family leaders are conservative Christians. If you are secular or non-Christian, you are not part of the conversation. Political theology remains a significant language in this country and, as Lilla asserts (see previous two posts), it is an exclusively Christian language that has been used to support a range of outcomes from revolution to repression.

Lilla suggests that even at its best, Christian theology is irrational. The most toxic symptom of this irrationality is its failure to engage in a conversation that acknowledges that Constitutional principles, which refuse to legislate theology, are, in their own peculiar way, sacred; that those who refuse to legislate morality are not indifferent to immorality, but are practitioners of a virtue less evident among the current crop of pro-family leaders: humility.

Why believe?

Lilla (see previous post) rhetorically asks "Why is there political theology?" and immediately notes that this question is usually interpreted in connection with a response to why we believe in God. He insists that the proper question is "Why do certain religious beliefs get translated into doctrines about political life?" This question assumes that we make a conscious decision to translate inherited beliefs into political doctrines.

Did the rabbis of Sanhedrin choose to innovate doctrine by radical interpretation of Torah, or was it simply so urgent for them to reconcile reality with a foundational document, that they had no choice but to invent a new manner of reading? Lilla suggests that "even an arbitrary picture inherited from the tradition or society in which one lives can be given rational structure and rational justification," but it is not clear to me that rational justification is sufficient evidence of choice.

Lilla concludes that "The temptation is great to draw God closer to the world or cut him free from it" (p. 31), but is this not specifically a Christian dilemma? I submit that the Jewish solution is to cite the scripture that proclaims "It is not in heaven"-- i.e., the revelation was both necessary and sufficient and is left for us to study and draw from it our own conclusions. We may appear to be rejecting when we think we are radically interpreting, but those who have earned the authority to suggest new readings are always attempting to draw God closer; and we may be attempting (whether consciously or not) to cut ourselves free, but never to cut God free.

Stillborn God?

Tonight I started reading Mark Lilla's new book, The Stillborn God. I'm reading it with Mike, my Talmud study partner from the days when I studied Talmud. We'll likely read 10-20 pages a day and talk three or four mornings a week about what we're reading.

At this point, I'm not sure that I will accept the premise, introduced on the second page of the text (page 4), that "Western liberal democracies have succeeded in creating an environment where public conflict over competing revelations is virtually unthinkable today." Is it not the competing revelations of science and Christian theology that have divided the American polity in the last two national elections?

Aside from terrorism, the major lines in the sand have been between theological orthodoxy and secular compassion. Only yesterday, John McCain's response to the question of whether a Muslim might be elected President of the United States, more than suggested that Christian theology remains a foundation for at least this Western liberal democracy. (McCain: "I just have to say in all candor that since this nation was founded primarily on Christian principles, that's a decision that the American people would have to make, but personally, I prefer someone who I know has a solid grounding in my faith.")

Is Western liberal democracy philosophically incompatible with McCain's sort of Christian chauvinism? Lilla suggests that it is: "The ambition of the new philosophy was to develop habits of thinking and talking about politics exclusively in human terms, without appeal to divine revelation or cosmological speculation." Such philosophy, however, has yet to permeate the political arena where McCain contemplates a Baptist conversion, Hilary Clinton speaks openly of her Methodist faith, and Giuliani is measured against his Catholic training.

Lilla's book may turn out to be a fine history of the development of secular political philosophy, but his suggestion that secular political philosophy has triumphed in this country may be extremely premature. Of course, no Western democracy is likely to be transformed into a theocracy in our lifetime, but theocratic-like declarations that categorize those who threaten us as evil, when coupled with suspension of rights for anyone accused of being an enemy combatant, bear too striking a resemblance to the act of throwing the heretics into the dungeons.

According to Lilla, "We are no longer in the habit of connecting our political discourse to theological and cosmological questions" (p. 7). Would that it were so. He concedes that the only barrier to making this (forbidden?) connection is "self-restraint"; even saying, "That we must rely on self-restraint should concern us" (p. 8); but how can he not see that no mainstream national figure exercises such restraint, and any who would do so would not get elected?

The theocracies of the Middle East are surely more restrictive, less happy places for secular humanists to live, but the developed world is not yet free from the shackles of political theology.

I began this blog thirty months ago to record my relationship to the Talmudic foundations of Judaism. Does a reading of The Stillborn God belong in this setting? To the extent that the philosophical disputes from which modern political philosophy emerged over several hundred years represent (in Lilla's words) "a continuous conversation, running over many centuries" (p. 12), they can be seen as well as a continuation of a conversation that goes back at least to Tractate Sanhedrin, if not even further into the past. And so, I continue to study.

All these parables really set out to say . . .

Today, I facilitated a discussion on the Torah portion for the second day of Rosh Hashanah. I began by noting that the text of Genesis 22:1 says that “God tested Abraham,” and that this text is called by some “the testing of Abraham,” while others call it “the binding of Isaac.” And I asked if the name of the story changes the way we process it.

After ten minutes or more of spirited discussion I asked what kind of a tale this is, and I suggested that even for those of us who take the words as being Torah from Sinai, it is still permissible to ask whether this story is an account of literal truth or a story that comes to teach something; concluding that what I was really asking first was, would it be fair to call it a parable? And I noted that the dictionary definition of parable is “a short allegorical story designed to convey some truth, religious principle, or moral lesson.” Finally I asked if there is anything about the nature of an allegorical story that would preclude it from being rooted in reality? Following another ten minutes of discussion, I delivered the following d’var Torah:

Kafka wrote that “Many complain that the words of the wise are always merely parables and of no use in daily life, which is the only life we have.” Of course, Kafka well knew that so-called daily life is NOT the only life we have. What happens in this space and this time is something else. We could create a parable about it and perhaps, as Kafka suggested, it would be no use outside this space, but we are here now, and here it would be useful. (Personally, I don’t believe that where we are is ever as important as who we are, but I also don’t believe that Kafka would disagree.)

Kafka, also wrote of parables, “All these parables really set out to say merely that the incomprehensible is incomprehensible, and we know that already.” Which is certainly true of the parable of the sacrifice of Isaac: it is incomprehensible and we know that already. But there is still the question of whether it is different to know it as Abraham than to know it as Isaac.

The question itself invites yet another parable, but that one we need to create for ourselves. And perhaps we need to know first whether we stand as Abraham or Isaac, and perhaps that is the greater challenge. I would begin by pondering the relationship of parenting a people to parenting a person because Abraham, in the parable in this parshe must parent a person to parent a people. For me, it almost writes itself:

The father of our people was, of course, Abraham. His father named him Avram, but Avram took the name of Abraham when he entered a covenant with God in which he swore allegiance to the Creator in exchange for certain considerations, including a promise of a multitude of descendants, present company included.

In contrast, my father was named Abraham by his father, but changed his name to Alfred in the 1940s with the expectation that an Anglicized name would make him less identifiable as one of the people of Abraham and thus more likely to be able to make hotel and restaurant reservations in this nation, which was then racially segregated and not only unselfconsciously Christian, but also a nation that regarded Jews as a different race.

My father, no longer named Abraham, was himself fathered by a man named for Isaac. So, the beginning of our people was a man who changed his name to Abraham and had a son named Isaac. And the end might have been a man who had a father named Isaac and changed Abraham to Alfred. Thus, my Jewish people nearly undid themselves in a reversal of how our people began.

Grandfather Isaac was a mystery to me. He spoke little English and was an observant Jew. His son, my father Abraham, was a man of this world, with no patience for our tradition. As a family and a people we ravel and unravel and ravel again. It would be difficult for me to truly understand what each sacrificed and for whom, but I also do not see a great chasm between my personal history and our destiny as a people; both begin with a covenant, whatever that means to us. They begin when we discover our identity and take a new name; and they begin again when we find ourselves responsible for a new generation. Who among us has not transformed ourselves and redefined our relationship to community and the larger mystery of the unfolding world? And who among us has never been confronted with an unacceptable choice that felt at the time as if the choice was either renouncing the world or annihilating our soul?

The parable of Abraham and Isaac does indeed encourage employing it to cloak our personal experiences in an allegorical form, especially if we follow Kafka’s notion of allegory as being incomprehensible. For example, I could make this very personal and speak of how I came to sacrifice my son and how no ram emerged before the knife was raised, and I would of course be speaking in parable about a singular experience that I continue to find incomprehensible.

There are certainly people who would consider me to be pretentious for speaking in parable when I speak of a moment that was most crucial to the formation of my understanding of who I am. But I would invite these people to consider how much more satisfying it is to ponder the crises of our lives when we dare to compare them to the yardstick of a great Torah archetype than what is more common these days.

The common reaction these days to any question to someone who has endured a hardship or trauma is to reply as if the person was only a witness and not the protagonist. You ask “How did it feel?” and he replies, “Well, you know, you feel some pain.” He doesn’t say, “I was in pain.” It’s like it didn’t happen to him. The narrative is one of denial rather than owning the experience. Likewise, these days, if God called to a 21^st Century Abraham, that Abraham might very well reply not “Here I am,” but “There you are.” For me, today, one of the powerful lessons I draw from the testing of Abraham is that his response to both God and Isaac when they called his name was “Here I am.”

So, there you are. And here I am. And my wish for all of us in the New Year is that we answer when we are called, and that we speak in our own voices, in the first-person, and from a place where we know who we are, whether that be Abraham, Isaac, or the ram in the thicket.

Am Haaretz from all over the world: take note . . .

Machzor Vitry, 150

At the writer’s Beit Midrash we were presented with a 12^th Century prayer that was recited at Havdalah before tasting the wine. The prayer began by earnestly entreating the angel of oblivion to “take away my foolish heart and cast it upon a high mountain.” The prayer itself was snatched by another angel of oblivion and dropped from the standard liturgy. Why would an angel of oblivion snatch a prayer and clutch it tightly to his chest? Perhaps he abhorred the prospect of being entangled in human confusion. A man might pray for relief from his foolish heart, not realizing that it is all he has to lose.

Or perhaps the need to excise this lost prayer for peace and freedom from sin is rooted in its prooftext. This prayer, which seeks a heart immune from hatred, cites Exodus 33 as justification for those who would dare to ask so much from God, quoted in 33:19 as saying, “I have favored who I will favor and shown mercy to whom I will show mercy.” The promise implicit in these words is that mercy is possible for at least some of those who seek it.

I look for these words in all my translations. The nearly literal Everett Fox renders it “that I show-favor to whom I show-favor . . . mercy to whom I show-mercy,” creating English compounds to communicate the chasm between the ancient and modern tongues; no more or less vague than the anonymous translator of the medieval prayer. The looser, modern JPS gives us “I will proclaim the name Lord, and the grace that I grant and the compassion that I show,” a kinder, gentler Almighty. The older JPS translation comes closest to the text presented to us: “I will be gracious to whom I will be gracious and will show mercy on whom I will show mercy.” Understanding of the ancient Hebrew is perhaps tied more to the theology of the translator than it can be to any affinity for its original sense.

What hope is there in a prayer for a peace that transcends the temptations we constantly face to be angry and judge others? Rashi understands God’s promise as no longer limited to showing compassion when God desires to show it, but a new commitment to send no Israelite away from prayer empty-handed. Rashbam sees it as God’s promise to make Divine attributes clear. On the other hand, Ibn Ezra sees what appears to be the plainest meaning—that God “will grant grace only to those to whom [God] wish[es] to grant it.”

God’s “promise” is itself only a few verses away from Moses’s desperate gambit to save his people from God’s wrath following their construction of a Golden Calf: “if you would only bear their sin--! But if not, pray blot me out of the record you have written!” (Fox). (Note that JPS and even the staid Hertz use the em-dash to express the unfinished thought, though only Fox adds the melodramatic exclamation point!) Only Moses could dare risk being erased from the Book of Life to save his sinning tribe. Perhaps this is why the prayer was ultimately removed from the standard liturgy. Are we not far better off without prayers that depend on a Moses to protect us from our natural inclinations?

Our workbook juxtaposes this prayer with a text from Zedekiah the Physician regarding a “rabbinical legend” that anyone who drinks water at twilight on the Sabbath is stealing water from his dead. Twilight before havdalah is the time when the dead are permitted water. Drink then and it as if you are stealing from their cup. Why is this text presented here if not to remind us that none of us can drink from Moses’s cup or take the risks that Moses took for his people? Why is this text here, juxtaposed to a no-longer standard prayer for peace-- a prayer that one would recite before tasting the wine at Havdalah-- if not to remind us that we cannot, in the absence of the prayer, ever taste this wine again? We must not, as Moses did, dare ask God to erase us from the Book in exchange for peace for our people; we must never again pray for a peace that we do not deserve.

Sanctification Eludes Me

I went to Limmud for the first time this year. [See my Limmud NY 2007 photos.] David Klinghoffer suggested that “Limmud New York, while conceived as a celebration of Jewish life, might more appropriately have been expressed as an act of mourning for what liberalism will do to our future.” I had a very different reaction.

From the first workshop I attended, which was Jacob Staub’s session on Spiritual Direction, to the last writing workshops by Kim Schneiderman and Patricia Eszter Margit, entitled “Soul Narratives” and “Writing as an Inward Journey,” I found inspiration to tap into my tradition and confront the challenging questions that Jacob set before us in the first session: What is God’s invitation to me at any given moment? What am I being called on to do?

I wanted to extend the Limmud experience beyond this long weekend and was determined to continue to practice the writing and journaling exercises that I took up in Kim’s and Patricia’s workshops. But I also knew that the distractions of everyday life would overwhelm me and dilute my best intentions. This determination needed an anchor.

The Skirball Center catalog arrived with the offer of an eight-week workshop, a “Writer’s Beit Midrash" for creative nonfiction writers. A financial commitment and a weekly obligation to show up might be just what I needed to keep myself on track and develop good writing habits.

I hesitated briefly in the face of the requirement to provide a writing sample. The application deadline was the next day and I had no writing that I considered finished. I imagined the judgment of the samples submitted to this writing workshop was designed to weed out rank amateurs such as myself, but I submitted the application despite my feelings, submitting a web link to one of these blog entries as my writing sample.

Shelly Fredman’s response could not have been more encouraging. I had passed the entrance exam! The final challenge was to properly structure the day so that I would complete all the work I had to do and get into New York before the class’s start time of 7:00 PM on Tuesday.

To do this, I had to be sure to allow enough time every Tuesday morning to run a series of updates to a rather complicated database and create and publish an agenda for a Wednesday morning meeting based on the contents of the database reports, allowing sufficient time to respond to any comments in reaction to the agenda and still be sure to leave my office promptly at 4:00 PM.

Everything came together. I left my office on schedule. My car was back in my driveway by 4:15, and I had a light snack packed and had begun the mile-long walk to the station by 4:25. I arrived at the train station by 4:45, a full five minutes ahead of the New York train.

I then cut a path through the waiting area to the men’s room. I found an unhappy black man glowering at the door. I shuffled past him and pushed against the door before I realized that there was a sign taped to it declaring that the rest room was out of order. The other fellow shook his head and began to walk toward the track as I weighed the contents of my bladder against the length of the train ride and decided that I was comfortable boarding without indulging in a precautionary visit to the toilet.

I should have sought out a toilet at the other end, but I didn’t. And as I walked uptown, the cold wind aggravated a developing urge to urinate that was undeniable by the time I reached 57^th Street.

For several blocks I had been searching for likely places to relieve myself. Fifth Avenue is saturated with upscale specialty stores, churches, and apartment houses guarded by uniformed door men. The specialty stores seemed well fortified and inscrutable; the churches had an inevitable gauntlet of homeless men clustered in their vestibules; and, while the doormen seemed my best bet, I suspected that the going rate to bribe a doorman was at least ten dollars and that the negotiations were likely to be awkward at best.

This part of the journey was not going well. I needed to stop, but any stop that was unsuccessful would hasten my losing control and wetting myself. The best strategy was to walk faster and hope I found a proper place to relieve myself before it was too late.

But then another disordered notion descended upon me: what was I even doing on Fifth Avenue? It occurred to me that Skirball was west of Fifth Avenue. Below 59^th Street that would be just a few feet west of Fifth Avenue, but I just then realized that at 66^th Street, east and west were separated by all of Central Park! I turned west and ran halfway to Avenue of the Americas before I double-checked this delusion and discovered that the address was in fact east of Fifth Avenue and that I had nearly gone way out of my way. It was already ten minutes to 7:00 and the urge to pee was nearly undeniable.

I ran north, screaming inwardly every time I was forced to stop for a red light, as crosstown traffic whizzed by, blocking my path.

I finally reached 66^th Street and rounded the corner. I could see that the entrance was at least 300 feet away as the wind picked up and dared my bladder not to burst. Immediately ahead, two parallel concrete partitions separated a construction site from oncoming traffic with a sidewalk grate between them. Barely three feet high, they obscured my desperate deed but did not entirely conceal it. There were no pedestrians on the street, but I faced a steady stream of headlights as I released my steady stream into the sidewalk grate. Thus humbled, I entered the Skirball Center for my first class.

It was not yet 7:00, but the other students and the teacher were all there, sitting round a square table. The group was a veritable Gilligan’s Island of writer castaways, the chance cross-section of New York Jewry I would have imagined in an adult education course if I had not been dreaming of legendary writers’ retreats in Vermont cabins deep in the woods, attended by invitation only, supported by generous grants. And who was I—Gilligan or the Skipper? Neither. I was the guy who peed on the sidewalk.

I always endeavor to make peace with my opportunities, so I embraced this gathering and listened attentively. I participated with enthusiasm, but I think that I talked too much at times and then held back at the end when it came time to read what we had written. This last move was possibly more arrogant than my overt participation. What I had written so pleased me that I fretted it would be cruel to read it in contrast to the hasty, unpolished offerings provided by the others. (Three days later it no longer seems nearly such a grand piece of writing!)

Sitting there, deliberately not offering to read, I was also puzzling over the teacher’s announcement that her critiques would focus on our strengths rather than our weaknesses. I wanted my weaknesses exposed and held under the microscope so I could transform them into strengths under the guidance of a professional tutor. But then I heard the offerings the others wrote that evening and I realized that this writer’s beit midrash was really a space to rehearse a personal dialogue with God; that whether we were writing of memories or hopes, goals or disappointments, we were writing prayers. And prayers are beyond criticism; subject to mercy, not judgment.

Was it ironic that the text we studied that evening was Leviticus 11:44-47? In this passage, God commands us to sanctify ourselves, to not make ourselves impure—“to make a distinction between the unclean and the clean.” How do I relate this text to the desperate physical struggle I endured on the street below? Did the resolution sanctify or pollute me? These are the ideas I wrestled with as I packed up and made my way back to Princeton.

I was hungry when I reached Penn Station. The light snack I had consumed several hours earlier had not sustained me, but I was mindful that we had just studied a text that concluded with the commandment to make a distinction “between the living things that may be eaten and the living things that may not be eaten,” and I wanted to find food that was designed to nurture rather than to stimulate a craving for more of itself. I wanted to find something other than those addictive fast foods that leave one spent but not satisfied.

Sanctification eluded me. I only came as close as a fried fish sandwich.

Rock Scissors Paper

The photograph to the right of my blog posts has been replaced to reflect how I look now (and how I have looked since early October). This "new" look is not so new. It is a return to how I trimmed my hair and my beard for most of my adulthood. Looking at the photos side by side, I am startled by the contrast.

I liked the hair and would not have cut it without a lot of encouragement. (Or was that DIScouragement?) Comments like "What did you do to yourself?" were wearing me down. However, I was heartened by one distant relative who, seeing all that hair, asked me if I had taken a Nazirite oath.

Of course, I had not. Tractate Nazir makes very clear why such oaths are no longer possible and why they were always to be discouraged-- no longer possible because there is no Temple at which one can offer a sacrifice to be released from the oath; and always to be discouraged because they are egotistic expressions (of manic humility).

But in the spirit of a "good" Nazirite oath I was bearing witness to sin by refraining from cutting my hair to call attention to government policies of detention, interrogation and occupation that were not coming from a holy place and not likely to end up in one either. When people would ask, "What did you do to yourself?" I would respond that I took a Nazarite oath until that man in the White House would be brought down. Many people found me to be much more handsome when I put my appearance in that context.

Then when they asked why I cut it, I replied in the same spirit, with a statement that I swear is completely truthful even though the truth of it can never be documented: In early October I was visited by a bat kol who whispered in my ear that I could cut my hair. The election results speak for themselves.

Remember the teaching that the Torah is not in Heaven? It was seen by some as signalling the end of the bat kol. That, however, is not correct. It simply meant that we no longer heed heavenly voices if they oppose the majority. Clearly, my bat kol was a voice to be heeded.

When the Line Isn't Clear

Today's NY Times reports on emerging responses to children who do not "conform to gender norms." They cite an increasing trend to regard gender variance "as a naturally occurring phenomenon rather than a disorder." We can be happy that the dominant culture is trending toward this outlook, but also note that in Judaism, this approach has been part of the philosophy since Talmudic times.

The aylonis, for example, is a woman who exhibits masculine characteristics and is incapable of bearing children. The saris is a man whose male parts do not mature. These are people who could be divorced simply because they were incapable of producing offspring, but the fact that they fall outside the range of gender norms is not otherwise stigmatized.

The fact that the Talmud can discuss such people so matter-of-factly stands out in a world where parents and schools continue to pressure children to suppress their instinctive modes of expression, even advocating the use of hormone blockers to delay puberty to avoid dealing with ambiguous gender identifications.

I'm not suggesting that this is a clear triumph for Jewish ethics, but it is another reason to study some of our oldest texts in search of answers to seemingly modern problems. Delaying the onset of puberty may be a desperate measure embraced by parents who are more fearful to discover who their children really are than they would be if they took for granted that there are many different kinds of children and they all have a place in the ongoing unfolding of creation.

This week, as Conservative Judaism wrestles with proposed new halakhic responses to gender identity, our ability to appreciate the breadth of gender identifications could not be more relevant.

Semicha!

A great big mazel tov to Rabbi Moshe Silver on completing two years immersed in a private study program with a group of Rabbeim and other Chevra, primarily from Lakewood. In August, in the thick of the Lebanon crisis, Moshe and his wife flew to Yerushalayim where he wrote his final Bechinah (exam). On 20 Av (14 August) he received his Semichah. Moshe's blog ToratMoshe is a wonderful collection of over a year of Torah commentary.

Kaddish and 9/11

A friend forwarded me a text that Rabbi Gerald C. Skolnik of Forest Hills Jewish Center had posted on a private list. With Rabbi Skolnik's permission, I will post both his original post and my own response, which I had shared with him. (His permission: "Feel free to post them, with your response. I may or may not agree with you, but time does not allow me to get into it right now, and what you wrote is certainly not offensive to me in any way...")

Here's his post:

(1) Is it OK to say kaddish for a friend killed on 9/11?

Len Linder asked why not; well, the answer is it may not be permissable halachically. In general, kaddish is a responsibility that devolves on those who are halachically obligated to say it (i.e., mother, father, sister, brother, son, daughter, spouse). It is not, in general, a prayer that one says because one feels grief or sadness, or even an acute sense of loss. If you know that there is no one else saying kaddish for someone who has died, and no arrangements have been made, then you can take the responsibility to say kaddish (usually not undertaken by those whose parents are still alive). Most usually, this is an issue during the year (or 30 days) of mourning, and then, you should understand that taking on that responsibility means taking on that responsibility, morning, afternoon and evening, and not just when you may be in a service. I assume that Jack is referring to his friend who was lost on 9/11; if so, then my immediate answer would be to discourage saying kaddish unless you knew that the family was not. This is, again, a halachic issue, and not about what feels right and/or appropriate (though I most certainly understand and respect the impulse).

(2) Is it OK to say a generic kaddish?

If the entire community/congregation is saying the mourner's kaddish as part of an exercise in memory (like at the end of Yizkor), then it is certainly appropriate. Other than that, I'm not sure I know what a generic kaddish is. By the way, at our minyan this morning, we recited an El Maleh Rachamim for all the victims of 9/11... another Jewish way to remember.

(3) Should said kaddish be said on the secular date, 9/11, or the date on the Hebrew calendar, which is next Shabbat?

I would say that it should be on 9/11; it is a kind of secular yahrzeit, and should be observed as such. Our Jewish days of mourning are structured around the Jewish calendar, but 9/11 was not a Jewish event.

I dare say that all halachah sits on an aggadic foundation (see Heschel's Heavenly Torah) and that the aggadic foundation for saying kaddish on 9/11 includes the inviolable association of the secular date with the reckoning of its yahrzeit as Rabbi Skolnik suggests (aggadically), but, in addition, it also includes the aggadic foundation of why and how we mourn: In this case the "why" is as much for the death of innocence and a world-view firmly rooted in a sense of liberty and justice that our government has all too readily sacrificed, as it is for the death of people; and the "how" is by saying a prayer that affirms that there is but One True Judge in whom we put our faith. Can it ever be halachically unacceptable to affirm the righteousness of the One True Judge?

Just Remember This . . .

The picture above this text was discovered during a simple Google search for images of Joe Lieberman. I copied it to display here for reasons that will become apparant as this entry unfolds. I am by no means certain whether the artist meant the image to be mean-spirited or not, nor am I certain whether my own observations on the Lieberman campaign will be taken in the spirit with which I offer them.

As regular readers of this blog well know, I strive to apply Talmud to the here and now. The text for today's entry was new to me when Jonah Steinberg distributed it for text study during his very worthwhile class at the National Havurah Summer Institute last week in Rindge, NH. Please do not hold Jonah responsible for how I come to interpret it here, since he never suggested that it be applied to the current circumstances in the state of Connecticut. [For more blogs on this Summer's NHC Institute, see Mah Rabu: Institute blog roundup.]

The text comes from Mishnah, Avodah Zarah, 2:5. It begins with Rabbi Yishmael and Rabbi Yehoshua walking on a path, and Rabbi Yishmael asking a question: "Why have they [the Sages] forbidden cheeses made by gentiles?' Most of the text is the back-and-forth between Yishmael and Yehoshua: Yehoshua explains how they reasoned their way toward the ruling and Ishmael offers reasons why they should have ruled differently. Eventually, Yehoshua tires of the argument and diverts Yishmael to the explication of a verse from the Song of Songs.

In the course of our hevruta study I came to understand that the context of this discussion was critical to unpacking it. Yishmael knew very well why the Sages had ruled as they had. And the Sages had likely taken all of Yishmael's arguments into account before making their ruling. Yishmael, however, was not willing to accept the decision of the majority.

In the NHC course that I taught this Summer, we studied that coiled serpent, the Akni oven, wherein Yehoshua declares that "it is not in Heaven" and Rabbi Eliezer is excommunicated for offering Heavenly voices as proof that the majority is wrong. It seems likely that Yehoshua's role here and there as the defender of decrees is a sign; and that he uses the erotic Song of Songs to gently turn Yishmael away from rebellion is another sign.

The consensus in Jonah's class was that the text comes to teach that new decrees should at the very least be allowed to sit unchallenged until the community has had a chance to assess their effect. They may be revisited after a proper test if they prove to be excessively burdensome or have unanticipated and unintended consequences, but first they must be accepted and given the benefit of the doubt.

Which brings me to Joe Lieberman. The decree of his party was delivered last Tuesday. They chose another candidate. They heard all the arguments he had to offer and the majority voted against them. Yet, like Yishmael, he would repeat the arguments as if there had been no decree.

Of course, the Democratic Party is not the Sanhedrin, but Senator Lieberman must realize that his current actions are the moral equivalent of excommunicating himself from the Democratic Party. We don't have to wonder who's kissing him now; and it sure ain't Yehoshua!

Chat Room Terrorists and Jurisprudence

Following my last post, I received the following from Mike:

I think it useful to step back and see the chat room question (and as we will see a number of other current issues) as the working out in practice of the essential conflict in a decent society’s criminal jurisprudence. I assume that in American court room trials pretty near everyone does not want to see those innocent of a particular crime found guilty, but also does not want to see those guilty of a particular crime found innocent. Our entire criminal justice system is based on trying to find the best compromise between these two inherently conflicting goals. It is not true that our society works on the principle of not convicting even one innocent person, even if it means 100 guilty ones were also freed. The reason is that we assume the more certain that the guilty will be punished (even if that means punishing some of the innocent), the more punishment will act as a deterrent to future criminal behavior. Thus in some sense, our rules weigh the chance that innocent persons will are punished against the number of other innocents who are not victimized in the first place because the potential criminals are deterred by the likelihood of punishment. However (and here we do to a considerable degree follow the rabbis), we tend to strike the balance (and I certainly agree that we should) on the side of freeing the innocent (e.g. no hearsay evidence, let alone tortured confessions).

The difficulty arises when what we are trying to deter is not ordinary criminal behavior, but what we perceive as the extraordinary behavior we call terrorism. A few current examples

The Guantanamo “trials” – The Bush people want to totally change the balance. No rules on confronting (and thus being able to cross-examine) your accuser, on hearsay evidence, even on torture to get confessions. To convince us to allow that behavior, the administration has to make us see the people involved not simply as garden variety criminals, let alone enemy combatants, but as “terrorists”. One key counter argument (see today’s Times) as made by military people is that our “innocent” military people will then be treated the same way. In short, these mostly military people argue that to keep the balance at the same point for our “innocents”, we can’t move the balance sharply for the “terrorist” guilty.

Raiding Congressman Jefferson’s office – the prosecutor insists they are trying simply to catch a criminal, but absent the terrorist argument, they insist they are not changing the balance point, (even though they have no precedent for what they did). Yesterday a court agreed that they have not changed the balance from a legal perspective (although there will be appeals), but those of us who find their behavior outrageous essentially think they have radically (and more important unilaterally) altered how society has understood that balance. Indeed, I think there far less to say in defense of the administration on this issue than on Guantanamo, or

The chat room “terrorists” – The issue of whether mere speech is sufficient for conviction is one of the ways (in my view, of course, extremely desirable ways) that we set the balance to worry more about convicting the innocent than about freeing the guilty.

The difficulty is in deciding whether such essentially public speech (chat rooms are open areas) does sufficient immediate harm (in terms of seeming to allow society to appear to condone the uncondonable – think Holocaust denial), or long range harm (in allowing people to meet one another and form alliances etc), that we should change the balance point in favor of convicting the not actually yet guilty so as to increase deterrence (or as in this case to simply remove the potential offender). I’m not sure where I come out here, and would be interested in your views.


Mike describes our criminal justice system as more concerned with punishing the guilty and thus deterring others from committing crimes than with preventing the rare conviction of an innocent person. This is indeed how it often plays out. We share a concern that the balance will tilt to privilege punishing the guilty over ever worrying about convicting the innocent.

These are clearly not Sanhedrin rules, and while I do not mean to suggest that Sanhedrin rules would work in an age when forensic evidence and DNA can be more telling than witnesses, I would invite us to do the thought experiment of imagining how new classes of evidence might have modified Rabbinic stringincies.

For example, assuming that we are all "Torah scholars" to the extent that we "know" right from wrong and need not be "warned" when caught in the act, do we arrest those who have expressed an interest in committing the act but have taken no steps toward implementing that commitment? Mike suggests that criminalizing speech that describes acts that no civilized people would condone may tilt the balance vis a vis punishing the innocent to avoid freeing the guilty.

As Reed Chopper suggests, the category of chat room terrorists can be viewed through the Rabbinic lens of words as deeds. Mike offers the more challenging example of the Holocaust denier. Taking that example seriously, I begin by asking who the Holocaust denier harms? What action is effected by his words? Ultimately, I see the damage as being to the integrity of our memory and an assault on our heritage.

How do we measure this offence? Is it any different from the science-denier who defies the evidence of global warming and willfully perpetuates behavior that will ultimately make our land uninhabitable? Or the constitution-denier who would criminalize stem cell research (from a fundamentalist need that defies the separation of church and state) that might prolong lives and alleviate suffering?

These are crimes that our rabbis could not have anticipated. What evidence would they require to convict and what punishment would they impose upon the guilty?