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Posts Tagged ‘justice’

More Mitzvahs, More Mitzvahs

Posted by rabbiart on August 26, 2009

We left off our study of Ki Tetzei’s mitzvot with #556 – not to punish anyone compelled to commit a transgression, or in the Hebrew שלא לענוש האנוס. The Torah’s verse on point deals with the case of a man who forces himself on a woman without her consent, and states clearly that guilt is not ascribed to the woman, and she is not punished in any way וְלַנַּעֲרָ לֹא-תַעֲשֶׂה דָבָר . We can pause here for two thoughts; the first is to notice the alarmingly large number of societies where – to this day – the blame and punishment falls not on the man but the woman, and the disturbing tendency of even women’s rights organizations and their advocates to gloss over these terrible injustices in favor of continually hounding you know which country I mean where – in the main – women have equal rights and protections. We can only lament the fact that some of the more traditional segments of klal yisrael are a bit less progressive in this regard.

The Torah anticipates “more modern” systems of jurisprudence which also operate to avoid punishing individuals who commit offenses under compulsion, against their will, and without intent.  This includes the three cardinal transgressions which one is not supposed to commit even under the threat of death.  For a system often described (some might say accused) of being patriarchal or male oriented, the Halachah makes an interesting exception to this rule.  A male who has – under duress – forbidden sexual congress is still subject to penalty, because, as Raba says in Talmud Yebamoth 53B (Soncino translation) “there is no compulsion in sexual intercourse since erection depends entirely on the will!

The specific case is made into a general rule that applies in every place and time – that we are duty-bound to to punish a compelled person with any penalty.

We come next to a seemingly strange and cruel mitzvah – #557 the duty of a rapist to take his victim for a wife.  Having just absolved – of any court imposed punishment – a woman who is the victim of a rape, does the Torah now intend to sentence her to a life of living with the rapist?  Not only this, but the next mitzvah – #558 – is that the rapist is never to divorce the victim.  How can this be? How can the Torah be so cruel as to command these mandates?!

The answer is clear. The Torah does not intend for these consequences of rape to occur.  The Torah (yes, I’m anthropomorphizing for convenience) designs – and is designed for – a world in which people carefully consider the consequences of their contemplated actions.  The Torah firmly believes – as it were – in the power of deterrence. To quote from Sefer HaHinuch “when he [the rapist] is aware [of the consequences of his actions] he will overcome his passion and refrain from committing this villany, in view of this penalty.

Rabbinic tradition quickly learned that deterrence is not a fail-safe mechanism. Rapes do occur. Men are not dissuaded by potential consequences.  Gradually, the Halachah created a set of exceptions and conditions so that a raped woman would not be sentenced to marriage and life alongside a person who had committed a horrible crime upon her.

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Two Negotiations

Posted by rabbiart on January 31, 2009

When we read the early stories of Breshit we often link two of Avraham’s conversations and struggle why he argued on behalf of the (innocent) citizens of Sodom and was silent when he was called to sacrifice his son.  He negotiates with HaShem in the first, but in the second he seems to have nothing to say.  In our parshah this week we are in the middle of another, actually quite elongated, negotiation; this time between Moshe (or you might prefer HaShem) and Pharoah.  You may not have thought of the plagues as a negotiation, but that is exactly what it is.

Avraham’s negotiation is with words only, Moshe’s words are accompanied by an increasingly emphatic set of signs and wonders.  Avraham is ultimately unsuccessful, as there are not ten innocent citizens of Sodom.  Moshe (and of course HaShem) succeed vividly – and violently. But there are additional instructive differences between the two, and perhaps lessons that apply to some elongated and violent negotiations that are going on today.  (Yes, of course, the situation in which Israel finds ourselves today.)

Consider the opening of Avraham’s conversation with HaShem.

וַיהוָה, אָמָר:  הַמְכַסֶּה אֲנִי מֵאַבְרָהָם, אֲשֶׁר אֲנִי עֹשֶׂה.</p?

Shall I hide from Avraham what I am going to do?

Once he has heard what HaShem plans to do, Avraham appeals toHaShem. His argument is simply put in Breshit 18:25. Shall not the judge of all the do justice!?!.  Avraham can appeal to HaShem’s sense of justice, because HaShem not only understands what justice is – HaShem is the creator of justice. So Avraham is able to negotiate with the ultimate power in all universe without resorting to arguments of power or any demonstrations.

The conversation with Pharoah is a different story altogether.  Moshe is not invited to negotiate for Israel’s freedom, he must force Pharoah to consider it.  Appeals to justice will not be useful; this is a negotiation about power, and power is the chief bargaining tactic. This is what really underlies the plagues – Pharoah must be convinced to do what he must, not what is just. The plagues – or something to substitute for them – are necessary. We cannot imagine that Pharoah can be persuaded by appeals for justice… or mercy.

Like any power struggle, the means escalate as the conversation is prolonged.  What starts with magic tricks and creeping animals turns all too soon into destruction, darkness and ultimately death.

As the balance of power shifts away from Pharoah we see his attitude change along with it. Egyptian magicians are able to duplicate the early plagues, and Pharoah’s heart was hardened. But in the 2nd plague (frogs) we see Pharoah begin to soften, as he tells Moshe and Aaron to ask HaShem to remove the frogs. When the gnats and flies come, he tells Moshe to take the Israelites out into the wilderness to pray, but not to go too far.

After the hail Pharoah confesses to Moshe and Aharon that he has sinned, HaShem is righteous and he (Pharoah) and his people are wicked. After just the threat of locusts, Pharoah’s staff begins to lose faith in him. When the locusts have completed their destruction Pharoah tells Moshe and Aharon that he has sinned, and begs for forgiveness.
וַיֹּאמֶר, חָטָאתִי לַיהוָה אֱלֹהֵיכֶם–וְלָכֶם. יז וְעַתָּה, שָׂא נָא חַטָּאתִי אַךְ הַפַּעַם, וְהַעְתִּירוּ, לַיהוָה אֱלֹהֵיכֶם; וְיָסֵר, מֵעָלַי, רַק, אֶת-הַמָּוֶת הַזֶּה.
He said “I have sinned against the HaShem your G-d, and against you. Please pray to forgive my sin this one time – I beg you – to HaShem your G-d, that he may take away from me this death.

Finally after darkness, the harbinger of death, Pharoah simply tells Moshe gai mir kebenyeh fenyeh although its unlikely Pharoah spoke Yiddish. The negotiation has broken down, and only the tenth plague is left.

Did these negotiations succeed or did they fail? In Sodom and Gemorah ten innocent citizens could not be found, and perhaps the story of Lot, his guests and his daughters is meant to tell us that there was not even one innocent person in that town. So even had Avraham bargained all the way down to a single innocent, the cities would still have been destroyed.  But that examination can wait until after Simchas Torah when we start our cycle all over again.

In our parshah, Pharoah seems to be coming to a realization that his behavior is not only wrong, but that it’s wrongness must be recognized, and he must ask forgiveness. But at the eleventh hour the text tells us only that Moshe left Pharoah in a great anger.  Was this negotiation successful? It is difficult to judge. The Israelites do not reach an accomodation with Pharoah, but they do succeed in getting out of Egypt.  Is that perhaps the only meaningful test. On this one, you will have to be the judge.

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California Supreme Court Gets One Right

Posted by rabbiart on May 17, 2008

In 1954 – or thereabouts – the songwriter Sammy Cahn wrote these lyrics for Frank Sinatra:

Love and marriage, love and marriage
They Go together like a horse and carriage
This I tell you brother
You can’t have one without the other

Love and marriage, love and marriage
It’s an institute you can’t disparage
Ask the local gentry
And they will say it’s elementary

Growing up in the sheltered atmosphere of 1950s white suburbia, these lyrics would have made perfect sense to me. Love and marriage equalled Mom and Dad. If I had known them then, it equalled Uncle Eddy and Aunt Jean, who held hands their entire married life. I think I would have understood the lyrics even though I was only five years old when Sinatra introduced the song to families gathered in the living room to watch a television production of Our Town on the big old console television. You know, the one with a knob on it that you used to change channels, even though there weren’t that many channels to choose from. And you actually had to get up out of your chair and walk across the room to do it. – Oh, the horror. – (Uphill, both ways, and in the midwest, through the snow.)

My how the world has changed!

Thursday afternoon, actually while I had Sinatra playing over the Internet, I received a telephone call from Sue Nowicki of the Modesto Bee. She was calling local religious and civic leaders to gather reactions to the California Supreme Court decision that declared it unconstitutional to limit “marriage” to opposite-sex couples. I have to say that my quote in the Bee was not taken out of context, and is pretty much word for word what I said to Sue.

“I haven’t yet read the ruling, but anytime a society moves in widening the scope of civil rights to more people, I think it’s highly likely to be a good thing”.

The court acknowledged that California law affords a domestic partnership “virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.” It then went on to say “The question we must address is whether, under these circumstances, the failure to designate the official relationshp of same-sex couples as marriage violates the California Constitution”

“One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples with equal dignity and respect.

Let’s look at some of the reasons given for opposing the expansion of the definition of marriage; the will of the people, the threat to the institution of marriage, and violation of established religious tradition. The court itself addressed two of the three. (1) The will of the people does not always govern; we used to have laws forbidding inter-racial marriage, requiring separate entrances and even segregated drinking fountains. Simply because a majority of people believe something does not make that belief correct or even desirable. (2) I don’t see how same sex marriage threatens the institution of opposite-sex marriage itself. It seems like there is a whole class of people saying “we think so much of the institution of marriage that we want to partake of it.” How is that a threat?. As the court said in its decision “permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.”

Finally, what about the religious tradition of marriage as between one man and one woman? We often hear the argument advanced “the Bible says that marriage is between one man and one woman.” Whose Bible? Which version? The Tanakh? The Christian Old and New Testaments, the Koran? The Bhagavad-Vita? As a society, do we want to go down the road of trying to impose our religious beliefs on people who don’t share them? That never really works out very well.

One of the quotes in the Modesto Bee reads like this: “’Clearly it’s against a biblical understanding of marriage. Our laws don’t reflect God’s standard for us and God’s definition of marriage. It will be interesting to see if our state will decide (in November) to uphold a biblical definition — do we believe in what God says or do we make up a new definition?’”

In point of fact, the Jewish bible does not define marriage; it merely describes various marriages while telling the story of our people. There is our founding patriarch Abraham – he had one wife and one concubine. His son Isaac fits the one and one model, but his grandson Jacob had two wives and two concubines. If anything, we find passages in the Torah that accept polygamy and proceed to regulate it.
In biblical times, polygamy was permitted. The Bible, in tolerating polygamy, gives evidence that the practice had long been an accepted social institution when these laws were written down. In the patriarchal age polygamy is regarded as an unquestioned custom. While the Bible gives a reason for the action of Abraham in taking Hagar for an additional wife and, in the case of Jacob, for having Rachel as a wife besides Leah, it only proves that polygamy as well as concubinage, with which it was always associated, was among the mores of the ancient Hebrew people (Gen. 16:1-4; 29:23-28). The same attitude is revealed in the episode of Abimelech and Sarah (Gen. 20:1- l3).
Polygamy was such a well established part of the social system that Mosaic law is not even critical of it. We find only certain regulations with respect to it; as, for example, if a man takes a second wife the economic position of the first wife and of the children she bore must be secure; and, in the case of inheritance, no child of a subsequent marriage is to be preferred over a child from the first wife. Other regulations were that the high priest could have only one wife and that a king in Israel should not have too many wives (Lev. 21:13; Deut. 17:17; Ex. 21:10). The last injunction, however, was of no effect. David had seven wives before he began to reign in Jerusalem, and an extraordinary number of wives and concubines has been attributed to Solomon (II Sam 3:2- 5, 14; 5:13). In connection with David, the prophet Nathan did not denounce the king for adding Uriah’s wife to those he already had but for the means he employed to secure her (II Sam. 12:7-15).

(Preceding two paragraphs quoted from http://www.faqs.org/faqs/judaism/FAQ/04-Observance/section-55.html)

Not until the 11th century did Rabbenu Gershom issue his thousand year ban against polygamy. If it was against our Bible, no ban would have been necessary.

Once you get past the legalese, the judicial syntax, the arguments based on religious tradition, the issue boils down to precisely this; dignity and respect. It’s not that there is a serious risk – as the court said- of denying members of a same sex relationship the same dignity and respect afforded to opposite sex relationships. It’s exactly what the people opposing this decision want; to deny dignity and respect to same sex relationships; to make their participants, in the words of the court, “second-class citizens.” If we believe that all of us are made in the image of G-d, and if we wish to do G-d’s will on earth, then should we not respect and honor each and every human being who G-d has made. And respect the choices that each person makes. What would be the harm in that? How does that threaten the marital institution? As my favorite quote from the Bee reads
‘There’s a lot of people with a lot of strong emotions, but my contention is that if you’re not in favor of same-sex marriage, you shouldn’t have one’
— Marian Martino of Modesto, who popped the question to her partner of 28 years minutes after she heard about the court ruling
Do all people love, and want to be loved? I hope so. I don’t know what Sammy Cahn and Jimmy Van Heusen were thinking when they wrote these last two verses, but the sentiments expressed apply to anyone and everyone who is now, has ever been, or will be in love with another of G-d’s human creatures.

Try, try, try to separate them
It’s an illusion
Try, try, try, and you will only come
To this conclusion

Love and marriage, love and marriage
They go together like the horse and carriage
Dad was told by mother
You can’t have one, you can’t have none, you can’t have one without the other!

No Sir!

The Supreme Court got this one right.

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