The Looming(?) Haredi Draft

For many years, Israel has effectively exempted Haredi youth from the otherwise universal requirement (for Jews) of IDF service. This has been a serious source of tension and strife in Israeli society -- a rallying point for secular and moderate Jews who view the Haredim as failing to pull their weight, and an absolute bedrock priority for Orthodox parties for whom avoiding military service is their number one policy demand.

The blockbuster decision out of the Israeli supreme court you might have read about doesn't quite compel the draft to start, but it does say that Haredim can no longer get their governmental stipends if they don't serve. In practice, the Haredi community is going to view it as the same thing -- an end to the system where they got paid to study Torah instead of serve in the army.

I won't claim to be an expert on this issue -- this is where I comment as an "interested amateur" -- but here are some initial thoughts.

• One immediate way to identify a complete know-nothing hack is if you see anyone saying this ruling demonstrates that the Israeli government is starving for manpower or some other vulgar materialist explanation. The current government, which depends on the support of Orthodox parties for its majority, was and is absolutely dead-set against this ruling.
• That said, the current war and the strain it's placed on Israel's military capacities has certainly even further elevated this issue's salience amongst the opposition, and that may have helped create a further permission structure for the court to rule as it did.
• It is entirely possible that this ruling could bring down Bibi's government. The mercurial nature of the Orthodox parties is I think a bit overstated (people are so proud for knowing better than the naive story about the ultra-Orthodox being the primary drivers of Israeli right-wing extremism -- "they've joined left-wing governments before! Shas backed land for peace!" -- that they skip past the ways that this social cadre has genuinely shifted rightward in recent years). But this issue really is the sine qua for the ultra-Orthodox, and if the current government can't secure it, that's going to create a yawning fissure in an already creaky coalition.
• It might be weird to think of "more militarization" as helping bolster pro-peace impulses in Israel. But we might see some shift in that direction, for at least two reasons. 
• Number one, in general, if every social sector is sharing the burden of military service, that may put a damper on needless military adventurism. Parties that are happy to risk the bodies of other Israelis to defend settlement outposts may be less willing to do so once their bodies are on the line. 
• Number two, for the Haredi parties in particular, the only way they might plausibly get their exemptions back is in a world where Israel is less reliant on constant militarization. So that could create some possibility for working relationship with more liberal forces in the state; albeit an "alliance" that will always be on shaky footing.

In any event, stay tuned -- this is a big deal.

Who's Defending Hamline?

By now, you've probably heard of the flare-up at Hamline University in Minnesota, where an adjunct professor of art history was dismissed following student complaints after she showed a historic painting that depicted the prophet Muhammad. Every account I've seen suggests that the professor presented the painting (which was created in Persia by a Muslim artist in the 14th century) in a respectful and sensitive fashion, including notifying students that it would be depicted in her syllabus and again before the start of the relevant class (and told students they were free to opt out of attending that session). Nonetheless, the college not only declined to renew her contract, they expressly accused her of "Islamophobia" and indicated that "academic freedom" should not have protected her ability to "harm" her student.

The decision to terminate the professor has been met with a firestorm of criticism (e.g.: FIRE, PEN America, the Muslim Public Affairs Council, Academic Freedom Alliance). I personally found this post by Jill Filipovic to be especially thoughtful. So far, though, the college has been emphatic in defending its decision.

On that note, however, one thing I've yet to see is any prominent figure defending Hamline. The closest I've seen is a local CAIR official who (at a university-sponsored forum) said that the lesson had "absolutely no benefit" and compared alternative Muslim perspectives on portraying Muhammad as akin to the existence of people who think "Hitler was good." I've also heard hearsay that some academic professional organizations have privately declined to speak out because many officers and/or members feel uncomfortable. But as far as public discourse goes, I've seen essentially nothing but wall-to-wall condemnation.

Indeed, the universality of the "Hamline got it wrong" position in some ways renders it impressive the degree to which the Hamline administration is sticking to its guns here. It is one thing to abandon principles of academic freedom under intense external pressure demanding censorship; it's another thing to abandon principles of academic freedom in the face of intense external pressure to abide by them. It does make me wonder if there are any unknown cross-currents of pressure that the college is responding to. It's not out of character for a university to make terrible, craven decisions, of course -- but it's a little out of character for a university to make terrible, brave decisions, which makes me think that there must be some point of leverage on the administration that they are succumbing to. Again, the prospect that these cross-currents exist doesn't at all excuse the college's actions here. If, for example, the decision to terminate the professor was widely popular amongst Hamline students (or groups that Hamline hopes to recruit students from), it would still be the case that the college had an obligation to stand up for the right principles. But at least that would be a normal, explicable failing.

But maybe I'm overthinking it. Maybe the Hamline administrators are that ideologically committed to being thoughtlessly censorial. Or maybe there's a line of Hamline defenders I haven't seen. But as far as I can tell, virtually everyone (left right and center) is onboard with the view that Hamline fouled up. The last people to agree, it turns out, are the Hamline administrators.

Am I Nuts for Thinking a Jewish Florist Should Have To Make an Easter Arrangement?

One thing I tried to impress upon my Con Law students this semester (and every semester) is that the interplay between anti-discrimination law and freedom of speech (and freedom of religion) is complicated and raises a host of thorny questions that defy easy resolution. These issues, of course, lie at the forefront of the 303 Creative case currently before the Supreme Court, which I'm sure will address them with the care, nuance, and sensitivity they deserve [/sarcasm].

But on that matter, I want to flag a hypothetical offered by prominent First Amendment specialist and former federal judge Michael McConnell, to get folks' intuitions on:

What if a Jewish florist is asked to design the floral display of white lilies on Easter Sunday morning at a Christian church? Ordinarily, flowers are just flowers. But the lilies in church on Easter morning are a symbol of the new life in Christ. I cannot believe that a free nation would compel a Jewish florist to construct a symbol of Christ's resurrection—on pain of losing the right to be a florist.

McConnell frames this as his "personal favorite hypothetical", and clearly perceives it as a knockout argument for the pro-free speech/religious liberty side. But perhaps I'm not fully grasping the facts, because speaking as a Jew this prospect doesn't seem that frightening to me.

Suppose I'm a Jewish florist. A customer comes in and says "I've seen the lovely work you've done with white lilies, could you please make a similar display for me?" I agree, since I have loads of experience working with white lilies. The customer then says, "thanks -- we plan on putting this display up in our church on Easter morning!" This prospect ... doesn't upset me. I don't intuitively think I should be able to refuse the customer, notwithstanding the fact that I obviously don't believe in the divinity of Christ, and I don't view continuing to serve the customer as forcing me to avow any beliefs I don't hold.

At root, the reason why this prospect isn't bothersome is because I don't view my customer's use of my flowers as representing my speech. I just design the flowers; what they do with it is their business. If someone sees the arrangement at church and learns that David's Flowers created it, I do not expect them to think "wow, I had no idea David believed in Christ's divinity!" This isn't to say I have no free speech concerns regarding flower arrangements -- I would very much chafe at government regulations that, for example, regulate what shapes I can use in my designs. That part very much is my expression, would be attributed to me -- the churchgoer who compliments the pattern of the flowers would credit those decisions to David's Flowers (I wrote about this a few years ago as the problem of partially expressive conduct).

There are still plenty of tough cases at the margins. I show my customer a preliminary design; they twist their lip and say "I dunno ... it's just not capturing the majesty of Christ's resurrection, you know?" I'm at a loss ("So ... bigger?"). But I'm inclined to think that while such an example might demonstrate why I might be a bad choice to design the arrangement, it doesn't give me the right to discriminate against the customer if they are in fact thrilled with the work I do and have done for other customers.

For me, then, McConnell's hypothetical has the opposite effect than what he intended. And of course, for many Jews -- particularly Jews who live in predominantly non-Jewish areas -- the more salient threat is that local businesses will be given carte blanche authority to refuse to service any of our religious life cycle events lest it be seen as "approving" of them. To let vendors say "ordinarily, a cake is just a cake -- but a cake served at a Bar Mitzvah has religious significance that we, as Christians, cannot approve of" is not a door I want to open.

But perhaps some of my readers disagree. Curious to hear people's thoughts on this.

The Judeo-Christian's Junior Partner

It's hardly a revelation at this point to observe how the "anti-CRT" style bills have quickly become tools to censor Jewish and Holocaust education. A recent story out of Florida, where a school district cited Florida's "don't say gay" bill to block a parent from giving an educational (but non-theological) presentation to teach students what Channukah is, wouldn't even be especially noteworthy (the district did eventually reverse itself). But there were some details in the story that I thought were illustrative about the location Jews are perceived to occupy in religious pluralism discourse versus the position we actually occupy.

The first thing to note about this district is that it is not some sentinel of secularism. The schools reportedly are replete with "holiday" decorations that are very much tied to Christmas. Nonetheless, when the parent tried to schedule her yearly Channukah presentation, the district demurred on the grounds that if the school allowed such an event, "“they would have to teach Kwanza and Diwali."

To which the Jewish parent replied: "I think that would be awesome!"

What we see here is how "Judeo-Christian" renders Judaism the (very, very) junior partner. Christians won't actually give Jews equal standing with Christians in terms of holiday exposure; as the "junior" they're not entitled to such largesse. But Christians assume nonetheless that Jews remain partners in the desire to maintain "Judeo-Christian" hegemony against upstart interlopers like Hindus or African-Americans. The idea that Jews would not be horrified by, but would in fact welcome, greater inclusion for other minority faiths and creeds -- that Jews actually identify more with other minority faiths and creeds than they do with hegemonic Christianity -- is incomprehensible.

The reality is that this unequal partnership is a creature of the Christian, not Jewish, imagination. Even if "Judeo-Christian" ever actually were a relationship of equals -- and I can scarcely imagine it -- the fact is Jews do not see ourselves as part of this "Judeo-Christian" collective with a shared interest in standing against other minorities. That religious outsiders might be included is for us a feature, not a bug.

Things People Blame the Jews For, Volume LX: Islam

Haven't done one of these in awhile, but then, sometimes the universe doesn't give you an option. Behold: 

I'm going to call it: "Islam is a Jewish conspiracy" might well be my favorite antisemitic conspiracy.

Top that if you dare.

Are All Exemptions "Individualized"?

One of the many fun events of the past few years has been the Supreme Court deciding it is going to blow apart and reconstruct First Amendment free exercise doctrine in the middle of a pandemic, often on the shadow docket, with little warning and less argument, invariably in the direction of hamstringing the public authorities' efforts to impose basic common-sense limitations to stop the spread of a highly-infectious, contagious disease. We should all take a moment to pour one out for the courageous American people, who have largely been steadfast and resilient in the face of the federal judiciary's determined efforts to kill us all.

The latest salvo on this front was the 6-3 vote by the Supreme Court to deny emergency relief to health care workers who wanted a religious exemption from Maine's vaccine requirement. Maine allows vaccine exemptions solely for medical reasons; it does not permit religious (or, I believe, any other) bases for exemption. This vote does not necessarily mean that the case will come out the same way if it ever reaches the Court via normal avenues; Justice Barrett, joined by Justice Kavanaugh, concurred but suggested that part of their issue was that the case was inappropriate for resolution on the shadow docket. Glad they finally got the memo!

Justice Gorsuch wrote for three dissenters to stake out what would have been until, well, last week, a truly staggering position: that Maine's choice to exempt from a vaccine mandate only those for whom a vaccine is physically dangerous fails rational basis review, which is such an extreme departure from existing constitutional law doctrine I'm almost in awe of its lèse-majesté. Others can pick at other aspects of the opinion, but one element I wanted to flag was Justice Gorsuch's claim that Maine has a system of "individualized exemptions" in place for its vaccine mandate which it is unreasonably failing to extend to religious objectors.

The "individualized exemption" rhetoric picks up from the Court's halting attempt to harmonize its new free exercise jurisprudence with what had been the prevailing standard in Employment Division of Oregon v. Smith, which held that neutral and generally applicable laws needn't offer religious exemptions even if they happen to impinge upon the religious precepts of certain individuals. Smith distinguished some older cases, notably Sherbert v. Verner, on the grounds that in the latter there was a system allowing for individualized review and assessment of each applicant's claim. In Sherbert, which involved claims for unemployment benefits, the state individually checked to see whether each applicant had demonstrated "good cause" for declining any work offered to them; the case there involved a circumstance where the administrative agency declined to accept that refusing to work on the Saturday Sabbath constituted "good cause". As Smith observed, most laws do not offer that sort of case-by-case, highly-tailored individualized review, and so the Sherbert rule is difficult to reasonably extend to other cases.

Fast forward thirty years, and we have a Court that seems far more inclined to grant religious exemptions as a matter of constitutional entitlement, but has not (as yet) been willing to overturn Smith. So it relies on the "individualized exemption" angle to say that it's not actually making a change. This gives us Fulton v. City of Philadelphia, ruling against a Philadelphia policy which declined to give a religious accommodation to a Catholic organization that wanted to discriminate against gay couples notwithstanding that its anti-discrimination policy allowed for exemptions at the sole discretion of the relevant administrator for any reason whatsoever. Though Philadelphia had never actually granted an exemption, the Court interpreted this provision as essentially having Philadelphia look at each application for an exemption and decide, based on individualized assessment of the particular case, whether to grant one or not. This was akin to Sherbert rather than Smith -- a system of individualized review -- and if one is going to offer that sort of review than religious exemptions have to be permitted as well. Perhaps for that reason, Fulton was a unanimous decision -- it really could fit within the pre-existing doctrine, albeit only because Philadelphia had a crafted a broad and purely discretionary exemption system allowing for individualized assessment of every applicant.

Which brings us back to the vaccine mandate case. Justice Gorsuch, in his dissent, says that the Maine rule is like the Philadelphia rule -- it allows for "individualized exemption." What he specifically says is that "The State’s vaccine mandate is not absolute; individualized exemptions are available but only if they invoke certain preferred (nonreligious) justifications" -- namely, the health-based justification.

Yet Justice Gorsuch seems to be making a conflation here with huge ramifications -- between "exemptions" and "individualized exemptions". Yes, Maine's law has an exemption from its vaccine mandate for persons for whom the vaccine would not be healthful; this is eminently sensible if Maine's ambition is to promote public health. But these exemptions are not individualized in the way that was present in Sherbert or Fulton -- Maine does not make a free-standing commitment to assess every applicant "as an individual" and determine, based on the totality of the circumstances, whether an exemption is appropriate or not. It has a specific exemption for a particular class of persons -- those for whom the vaccine would be physically dangerous. Admittedly, Maine presumably has to do some individualized review to determine whether a person applying for an exemption under this demarcated policy qualifies for the exemption. But that is still not "individualized" review in the Sherbert/Fulton sense, unless every "exemption" in a law necessarily is an "individualized exemption".

Which actually does seem to be Justice Gorsuch's position: all exemptions are "individualized exemptions" -- the word "individualized" is superfluous. His proof that the vaccine mandate has "individualized exemptions" is that it is "not absolute", suggesting that any exception ipso facto qualifies as an individualized exemption which must therefore allow for a religious exemption as well.

This is staggering. One would struggle, I imagine, to think of a law that doesn't have some "exemptions" in it -- pretty much any law of substance has some "provided that such-and-such does not qualify" proviso in it somewhere. Our laws prohibiting stabbings exempt surgeons; our laws prohibiting possession of drugs exempt police officers seizing drugs; our laws prohibiting homicide exempt executioners of the death penalty. Are these all now "individualized exemptions", compelling religious adherents to get a similar exemption as well? In our soon-to-be-post-Roe world, most states which ban abortion probably still will have some "life of the mother" exception; does offering this exemption mean that any person for whom abortion is religiously mandatory in other scenarios must be permitted to have one?* I can't wait for the first Jewish plaintiff to sue on that theory; I can wait for her to inevitably lose because there is no question that the rule being expressed here is not a check liberal religious observers will be entitled to cash as against conservative rules.

At some level, this is all an academic exercise -- the reason we're focusing on the existence or not of "individualized exemptions" is not because Justice Gorsuch has any particular attachment to that as the standard, it's because this is the rhetoric one can find in Smith and so this is the best way to achieve the outcomes Justice Gorsuch wants in a world where there are not yet enough votes to overturn Smith. Nonetheless, the implications of Justice Gorsuch's position really is that any law which has any exemption for any reason must have a religious exemption too -- a position which seems perilously close to covering "all laws". That's a recipe for religious anarchy. I won't say "and that's the point", because again, we all knew who is going to be allowed to ride that train and who won't be. The likely upshot is far more likely to be the typical authoritarian-conservative structure: a favored class for whom the laws protect but do not bind, and a disfavored class for whom the laws bind but do not protect.

* It is amusing to me just how well Justice Gorsuch's logic for why a health exemption to a vaccine  mandate necessarily compels a religious exemption maps onto why a health/life exemption to an abortion ban necessarily compels a religious exemption there too. Justice Gorsuch's position is that we are per se forbidden from ever declaring a "religious" need as lesser than any secular need, including health and safety (this has been referred to as promoting a wrongful hierarchy privileging "life-sustaining" over "spirit-sustaining" needs). The only basis we have for declining a religious exemption is if the religious action uniquely threatens the state's interest in promulgating the general law in a way that the secular exemption doesn't. 

In the vaccine case, Gorsuch's argument goes, unvaccinated persons may be dangerous in a health care setting, but they're equally dangerous regardless of the reason they're unvaccinated -- it's not as if a virus is less transmittable if it's carried by someone who's unvaccinated because of health reasons compared to religious reasons. But so too in the abortion case -- the state's interest in protecting fetal life is equally implicated regardless of whether the reason the fetus is killed is because its necessary to protect the mother's life or because it's necessary to protect the mother's soul. Either way, the fetus is equally dead, and so once the state allows the, ahem, "individualized exemption" permitting abortion in cases where it is necessary to save a mother's life, it must allow them in any cases where a patient sincerely believes them to be religiously mandatory. 

Federal Court: "Jewish" Isn't a Race Under Title VII

Last year, I wrote about a federal court opinion in Bonadona v. Louisiana College, addressing whether Jewishness is a "race" for purposes of Title VII litigation. The question rarely comes up, because Title VII also protects against religious discrimination, and so Jews suing on basis of antisemitism typically just use that as their statutory hook. But Bonadona involved a Jewish-born convert to Christianity, who was nonetheless allegedly denied a position at a Christian university on the basis of his "Jewish blood" (yes, that phrase exactly). So he couldn't claim religious discrimination -- he was Christian, just like his would-be employers -- but the reference to "Jewish blood" certainly smacks of an employer who viewed (and disparaged) Jewishness as a race.

The decision last year concluded that Jewishness is, or at least could be, a race for Title VII purposes. But it was actually only a magistrate's recommendation, and a few days ago the district court judge apparently overruled that recommendation (via) and decided that Title VII categorically does not provide protections to Jews as a "race" because Jewishness was not understood to be a race in 1964 (I say apparently only because the court's opinion does not mention or discuss the magistrate's recommendation in any way).

This lack of discussion is disappointing, since the magistrate's opinion raised some issues that I think are worthy of discussion but get no attention in the relatively sparse treatment offered by the district court. The latter's analysis begins and ends with the (for what it's worth, uncited) declaration that Jewishness wasn't viewed as a race in 1964, and so consequently the statute could not have been intended to encompass Jews (at least, as a race). This distinguishes the Bonadona case from other precedents which found Jewishness was a race for the purpose of Section 1981 litigation -- Jewishness was seen as a race in the 1860s, but wasn't by the 1960s.

To me, though, this analysis isn't persuasive, and smacks of a sort of vulgar textualism (what in the constitutional context is sometimes called "original expected applications originalism") that is just wrong as a matter of fundamental legal interpretation. The right question -- even from an originalist/textualist vantage -- isn't whether Jews were (by everyone? the majority? themselves?) viewed as a race in 1964 (or 1866). It's whether, under the prevailing understanding of "race" that would have dictated meaning in 1964, Jews are being viewed as a race now (either generally, or in the particular fact pattern at issue).

For example, suppose that in the mid-1970s, a race of human mole people emerged from beneath the earth and sought to integrate into above-ground human society. Though they're biologically human, they have their own distinct customs and practices, and are physiologically distinguished by their dark blue skin. In the United States, they are quickly assimilated into normative American race politics (e.g., White supremacists hate them, some people are nervous about allowing them into their children's public schools, a network of stereotypes about them quickly entrenches itself, and so on). Are they a "race" for Title VII purposes? It'd be weird to answer "no" because in 1964, "moleman" (not yet having been discovered) wasn't recognized as a race. Rather, the question is, given what "race" was understood to have meant in 1964, whether the manner in which the mole people are being treated corresponds to a racial category. If the answer is "yes", then they're a race for purposes of the statute. If not, then they're not.

The reason we have to stretch to a hypothetical about "mole people" is that it's quite hard, under prevailing contemporary understandings of race, to imagine a clear cut example of a new race being "discovered". In reality, while race is not a static concept, social groupings don't move into or out of the category all at once. In the case of Jews, for example, sometimes we've been viewed as a race and other times not, and even within a discrete time period some people have viewed us as a distinct race and others not. White supremacists today still discriminate against Jews on racial, not (just) religious, grounds, even though many other people do not view Jews as racially distinct. That was probably equally true in 1964. It seems very odd to say that discrimination that is both expressly described by the perpetrators and acutely experienced by the victims as occurring on racial grounds is nonetheless not on basis of "race" because ... what, exactly? Jews aren't "really" a race? There isn't a metaphysical  or biological reality to race, other than how it's performed -- the act of treating a group as racially distinct is all there is to race-ing a group.

Consequently, I'd suggest that, at minimum Jews are a race for Title VII purposes in cases where the discriminatory treatment they experience is racialized. The markers of racialized treatment -- which I think had purchase in 1964 -- are things like viewing ones personal character or human value as dictated by one's biological ancestry, assuming sweeping similarities across a wide range of character traits based on perceived physiological or genetic similarity, viewing the group as one which has the potential to degrade or "pollute" the gene pool, perceiving membership in the group as per se (or at least highly suggestive) evidence for all individual members that they are congenitally incapable of integrating with others not-like-it, and so on. Admittedly this may not be amenable to being nailed down  with precision-- but that fuzziness is probably why Title VII doesn't attempt a definition of "race" (if it were as simple as "the groups that were generally classified as races in 1964", then the statute could have easily just given that list). To a large extent, when it comes to whether a particular group is being viewed as a race, "we know it when we see it".

Does the above rule -- where one is a race when one's discriminatory treatment is racialized -- cover all cases of antisemitism? Not necessarily. Someone who refuses to hire a Jew because "they don't worship the same God I do" is engaging in religious discrimination, but that sort of statement does not on its own evince a view of Jews as a distinct racial group. One can imagine a range of cases that get grayer and grayer as you approach the middle, but refusing to hire someone because of their "Jewish blood" seems to sit pretty comfortable on the far side of the spectrum.

And this, I think, represents a more faithful application of the original understanding of the word "race" in Title VII than the casual inquiry given by the District Court. It is unlikely that the drafters of the Civil Rights Act thought of themselves as protecting certain ahistorical and immutable categories of "races" that existed from the depths of antiquity and would persevere endlessly into the future. By 1964, when we had started abandoning the view of race as a biological reality and instead treated as a sociological category, a "race" for Title VII purposes is a group that is treated as a race in cases covered by the statute.

Radical Feminism Takes Over Zionist Sharia!!!!!!

In a story that has something in it for everyone, the Israeli government just appointed the first Muslim woman, Hana Khatib, to one of its official Sharia law courts. Yes, that's right: Israel has Sharia law courts. And, as it happens, Jewish women still are prohibited from serving on Israel's official Jewish Rabbinical courts, so this is an area where Israeli Muslim women are actually more equal than their Jewish counterparts.

Female judges on official Muslim courts are rare worldwide, but not unheard of. According to the Arab News, for example, the Palestinian Authority has two women on its religious judiciary roster.

In any event, congratulations to Ms. Khatib, and condolences to the various medical professionals worldwide who are no doubt dealing with misogynists, anti-Zionists, and Islamophobes simultaneously having their heads explode.

Is This a Bit?

Reza Aslan says he's "worried about Israel's future" because of the growing numbers of Haredi Jews. The article (which apparently is a version of a segment he's presenting on CNN's "Believer"), notes the high birth rates of ultra-Orthodox Jews in Israel and suggests that they will do unto Israel what political Islamists did to Iran in the late 1970s.

I have to say, though, I don't think the objective of this piece is to express deep concerns about Israel. I don't even think it's to make genuine observations about Haredi Jewry. Rather, this pieces reads to me like Aslan wanted to do something of a bit: taking well-worn tropes about how people talk about Muslims, Islam, and Islamism, and applying them to Jews.

I'm not a huge fan of this sort of writing, particularly when (as here) it isn't clearly satirical. Indeed, if anything the problem is that it's too earnest -- it speaks in a way that seems to be less about showing the absurdity of certain ways we talk about Muslims, and more in a way that seeks to (further) legitimate talking that way of talking about Jews. Overall, the presentation is done in such a way as to otherize and (dare I say) orientalize religious Jewry. Take the following passage:

[A]ccording to the Pew Research Center, a staggering 86% of ultra-Orthodox Jews want Israel to be a theocratic state governed by Jewish law, known as "halakha."

If the way he's talking about "halakha" sounds exactly like how countless articles talk about "sharia law", it should, because it does. If it makes you cringe to hear halakha presented as simply a force of backwards inegalitarian theocracy then every article which talks about sharia in the same way should make you cringe; and if you cringe at articles which portray sharia as univocally representing the most reactionary and anti-modernist forms of Islam then you should cringe at this piece as well.

To be clear: there are things to be worried about regarding growing Haredi influence in Israel. Their politics aren't mine, and they openly discriminate and subordinate Jews like myself and my partner. Judaism, like Islam, is as it does, and so we as Jews have an obligation to act out Jewishness in ways that are consistent with ethical commitments and to resist those wings of Judaism that are inconsistent with modern, egalitarian forms of life. At the same time, in a world beset by horrible stereotypes of what it means to be Jewish (or Muslim), it should not offend us that these are delicate conversations that need to be handled with considerable grace and care. Broad-brush strokes which seek to delegitimize huge swaths of the faith community en masse are inappropriate, do more harm than good, and often seem more motivated by exclusionary impulses than genuine efforts to facilitate inclusion.

Strength, Repentance, and Jewish Diasporism

What is complete repentance? It is so when an opportunity presents itself for repeating an offense and the offender refrains from doing so because he has repented, not out of fear or lack of strength. -- Maimonides

To be contrite in our failures is holier than to be complacent in perfection. -- Abraham Joshua Heschel

Another Yom Kippur has concluded, and as my dad likes to say, the best part is that we're never farther away from another Yom Kippur than we are at this moment. A favored pastime of Jewish intellectuals this time of year is to point out various sins of the Jewish community as a whole -- Israel is a frequent target, though not the only one -- and urge repentance.

I don't necessarily think this is a bad thing, framed properly. Over Rosh Hashanah, my home Rabbi gave a compelling sermon about the need to create a positive Jewish spiritual identity that went beyond "survive!", arguing that our communal Jewish institutions had given my generation the short shrift by failing to conceptualize Judaism as anything other than Fackenheim's 614th Commandment (a Commandment which, to be fair, actually does resonate with Millennial-generation-me). Repentance is about becoming better than we were before, and it's never a bad thing for the Jewish community to be better. The idea of being a "light unto nations" imposes a heavy burden on ourselves, but one we should be proud of striving towards even as we know our light could always shine brighter.

I thought about this while reflecting on Mira Sucharov's thoughtful column about the new "non-Zionist" synagogue that recently opened in Chicago. As Sucharov observes, the synagogue is not really "non-Zionist" in the way that she is a "non-NFL fan". It is by no means indifferent to Zionism. It has very strong opinions about Zionism and Israel generally. In a sense, they care a lot about Israel (in the same way that Sucharov does). But in a sense, it seems quite different. Perhaps they "care" about Israel in the same way they "care" about North Korea: "they simply think that Israel is responsible for a significant amount of evil in the world, and are working to try and rectify it -- there is no sentimentality behind it, anymore than efforts to end North Korean brutality are motivated by deep caring about North Korea."

Maybe that pushes too far -- the synagogue does seem to "care" especially about Israel because it is Jewish. But even here, the linkage to Jewishness is of a contingent and regretful kind: they don't want Israel to change so that it becomes a better emblem of Jewishness in the world, they view it as objectionable that it represents Jewishness to begin with -- that it is a Jewish state. They're concerned with Israel because it gives Jews a bad name, but they don't otherwise view Israel as legitimately part of a Jewish future. Instead, the synagogue is based around the concept of "Diasporism" -- that the Jewish home is everywhere and nowhere. Everywhere, because Jews should view their home as wherever they happen to reside. Nowhere, because there is no particular spot -- Israel included -- that we can claim as ours.

The ideal Jewish role in diasporism is a critical one -- we imagine ourselves as the conscience, the gadfly, the light unto that nation. Sometimes, of course, diasporism keeps us busy simply to remain a surviving group, a clinging-by-the-fingernails group, a deeply marginalized and vulnerable group. By definition we are not the dominant group, the powerful group, the in-control group. We certainly are not the oppressor group.

Prior to the establishment of Israel, the Jewish existence was diasporic. It did, largely, take on the qualities identified above. It can be and is romanticized, of course -- more focus on the first sentence (conscientiousness and critique) and less on the second (vulnerability and marginalization). The reason diasporism failed in the 20th century is that, between the roughly 50 years of having a state and 50 years of not having one, Zionism decisively beat diasporism on the all-important "not nearly being annihilated in a cataclysmic genocide" scoreboard. But there is no question that having a state, having a place where Jews were more than just a critical voice but a dominant voice, an in-control voice, a powerful voice was a very novel experience for Jews. And one upshot of having power is abusing that power. Of using that power to deeply, seriously, significantly wrong others. As Israel as done. As happens with power. Power gives one the opportunity to do things: terrible things and great things alike. The same dynamic that allows Jews to govern ourselves rather than exist as supplicants, also allows us to dominate others rather than coexist in equality. The same dynamic that allows Jews to save ourselves rather than pray for salvation, also allows us to hurt others rather than to respect their dignity. The coin of power allows either and both to be purchased -- one cannot have the opportunity for one without the opportunity for the other.

Diasporism sees Jewish wrongs -- genuine wrongs -- and yearns to go back to a time when Jews didn't act that way. And it is true: before there was an Israel, there was also no occupation, no Gaza incursions, no military law over Palestinians, no West Bank barrier, and so on. Jews in the diaspora did not need to worry about occupying anyone; we had no nation that could occupy. We would never be responsible for promulgating unjust laws; the laws were not ours to promulgate. We had no risk of significantly hurting others; the hand on the sovereign sword was not ours. Even our uprisings and resistances were blessed in their hopelessness. In Max Weber's terms, we could live a pure ethics of conviction, with zero concern for the ethics of responsibility. There is no true responsibility in diaspora, nothing really falls on our shoulders.

Diasporism is, at root, the Jewish fear of Jewish power. It knows that powerful Jews have the potential to be bad Jews -- in fact, it sees powerful Jews acting as bad Jews -- and its solution, its teshuvah, is to give up the trappings of power and return to the disempowered diaspora state. But as Maimonides observes, this is not repentance. The man who cuts off his tongue so that he cannot slander his neighbor has not repented, he has made true repentance impossible. Complete repentance must coexist with the opportunity, the strength, the power to commit the sin once again and the free choice not to. To "repent" for the sins derived from Jewish power by abolishing that power is no repentance at all -- it is a tacit belief that Jewish power will always, unavoidably, inherently be sinful power. It is a choice precisely to avoid the hard work of repentance, to avoid uncomfortable holiness of having to be contrite in our failures.

Diasporism is in some ways the mirror image of a completely self-satisfied Zionism, the sort that is convinced that nothing is Israel's fault, that all the problems and tribulations of the region are completely attributable to the malfeasance of Palestinians or other Arabs (or the UN, or the EU, or Iran....). In both cases, there is a complacency in (imagined) perfection. And both, in their own way, exhibit a preference for Jewish weakness, a desire to not have the choice to do right.

So on this Yom Kippur, I say we reject both. I say we recommit to Jewish strength -- including the strength to recognize and correct our sins, not because we have no choice, but because we once again are faced precisely with that choice.

Not a Conversion, But a Unification

The Hebrew Israelite community -- an umbrella term encompassing a variety of Black Jewish organizations and movements -- has just selected Chicago Rabbi Capers C. Funnye as its official Chief Rabbi. The Forward has a good overview of this historic event and the current status of Hebrew Israelites in the United States.

Rabbi Funnye is a well-known figure in both the Hebrew Israelite and American (Ashkenazi-dominated) Jewish establishment (I was well aware of his congregation when I lived in Chicago during law school). He is also relatively unique in the Hebrew Israelite community for having undergone a "formal" (Conservative-overseen) conversion to Judaism. Many members of the Hebrew Israelite community do not do this, primarily because they already see themselves as Jews and they bristle at the suggestion that their Jewish pedigree needs validation or ratification from other (predominantly White) Jewish institutions. A similar controversy often exists in African Jewish communities, who frequently see conversion requirements as disrespecting their own historical identification as Jews.

Yet there is no doubt that Rabbi Funnye's conversion has assisted him greatly in building bridges between his Jewish community and the "mainstream" one populated by people like me. Which got me thinking. There are not that many Jews, and there are not that many people seeking to identify as Jewish. Our default stance should be to embrace diverse populations which want to join our community, and at one level a "conversion" is a great formal ritual to make clear on all sides that regardless of what you look like or where you come from, we are all equal as Jews. Yet I am sympathetic to the notion that there is something askance about forcing a predominantly Black Jewish community, that has been practicing Judaism for multiple generations and fully identifies as Jewish, to submit itself to Jewish approval by predominantly non-Black institutions. What gives us the right to form that hierarchy? And what does "conversion" say about their prior status as Jews?

So it seems to me that it should be a Jewish priority to come up with an alternative. Not a conversion, but a unification -- a ritual or practice whereby persons from Jewish communities that have historically been on the margins of normative Judaism, who perhaps have not always been recognized as Jewish by normative Judaism, can have the opportunity to declare themselves and be declared part of the broader Jewish family. Of course, this is not an open-door proposal -- unification requires, if not agreement by all parties on all aspects of what Jewishness means, then at least consent by both parties that they mutually understand the other to be Jewish in a sufficiently robust way so as to be part of a single community.

Were I a Rabbi -- and lord knows I'm not -- this is what I would be spending my time developing. I think along the same lines regarding the children of interfaith couples where the mother is not Halakhically Jewish but the child has been raised Jewish and fully identifies as a Jew. For that child, it seems to me that the Bar or Bat Mitzvah could just as easily serve the role of a "conversion" as well: it is, after all, the moment where a young person assumes the responsibilities as a Jewish adult, and so a young person who was not born a Halakhic Jew but who is willing to assume those same responsibilities can, in my view, reasonably be said to have been accepted into the community as a Jewish adult.

Judaism is strengthened by our multiculturalism -- the vast montage of human diversity and experience which is enveloped under the Jewish umbrella. We should be proud that we are a faith which for thousands of years (and through no small adversity) continues to exercise a pull on persons of widely divergent histories. I have no desire for Judaism to become a proselytizing faith. But in a world where different faiths and ethnicities interact and intersect like never before in human history, it is time for Judaism to adjust in how it embraces persons who -- diverse though their heritages may be -- are united in their identification as Jews.

Worshiping Different Gods

I have a confession to make. In the context of interfaith relations between Jews, Christians, and Muslims, I really don't like it when people say "we worship the same God."* In part, it's because I have no idea what this statement means or how it could be verified. At what point does adding Jesus into the mix (or name your other sectarian division) mean the God has changed? No matter how you slice it, the theology in this debate seems like it is being driven by the politics (whether the politics are "we're all fellow-travelers on spaceship Earth" or "I'll be damned if I share anything in common with those evil Muslims/Christians/Jews").

But the bigger problem is that making "the same God" the trump card argument for interfaith solidarity doesn't exactly inspire much confidence in our ability to respect those religions who unquestionably worship different Gods (Hindus, for example), or those that don't worship God at all (atheists, many Buddhists). I really do wonder what Hindu-Americans think when they hear progressives make this argument as the centerpiece of their calls for religious tolerance. It must be profoundly alienating at best, deeply worrisome at worst.

The better thing to say is that it doesn't matter whether Jews, Christians, Muslims, Buddhists, Hindu, Atheists, or anyone else share a God in common or not. We're all entitled to respect, we're all entitled to be treated equally, and we all should be free to practice (or not) our faiths as we see fit. A constructed sameness of the Abrahamic faiths -- if it even is real -- is worse than unnecessary, it's deeply harmful and exclusionary.

If one does want to make an argument of this sort, I vastly prefer the Talmud's formulation, as articulated by Rabbi Morris N. Kertzer

The Talmud tells us: “The righteous of all nations are worthy of immortality.” ....There are many mountain tops and all of them reach for the stars.

* Needless to say, I do not support any forms of retaliation or sanction against persons -- particularly academics -- who do make this argument.

Thank Heaven for Small Victories

So UNESCO, the U.N.'s cultural agency, passes a one-side resolution blaming Israel alone for "“aggression and illegal measures taken against the freedom of worship and access of Muslims to Al-Aqsa Mosque and Israel’s attempts to break the status quo since 1967.” It also labels two Jewish holy sites -- Rachel’s Tomb in Bethlehem and the Tomb of the Patriarchs -- as solely Muslim holy sites. But since the resolution dropped prior language that also would have denied Jewish connection to a third holy site (the Western Wall), it's being portrayed as a moderate position. Because, you know, UN.

Incidentally, the "status quo" on the Temple Mount being referred to is one where Jews aren't allowed to pray there. On that point, I observed the following last week:

The fact that Israel prohibits Jews from praying at the Temple Mount, & the fact that this isn't even seen as religious freedom violation...

— David Schraub (@schraubd) October 16, 2015

...really emphasizes how Jewish subordination is seen as a natural global baseline. I can accept the ban's security rationale as valid...

— David Schraub (@schraubd) October 16, 2015

... but I can't accept that the prejudices which require it, and which deny Jewish religious heritage, are anything other than bigotry

— David Schraub (@schraubd) October 16, 2015

In moderate counterpoint, Rabbi Avi Shafran, the Director of Public Affairs for Agudath Israel in American (an Orthodox Jewish umbrella group), has an excellent column on the issue of incitement and worship surrounding the Temple Mount. One thing he observes is that, under traditional Jewish law, Jews really shouldn't be praying at the Temple Mount (and the Orthodox establishment in Israel has accordingly come down hard against it). It is a nationalist move to do so, not a religious move to do so; and Rabbi Shafran says we should have no sympathy for nationalistic provocations (to forestall "one sided leftist!" comments, the bulk of his column focuses on the inexcusability of Muslim terror attacks purportedly "caused" by Jewish incitement).

It's not that I disagree with Rabbi Shafran. I don't have any desire to pray on the Temple Mount, in large part because I don't have a gratuitous desire to inflame tensions. That said, it is up to Jews to decide how to express their religion, and I don't accept that Jewish religious ritual (even that which is not Orthodox-approved) should in a just world be a per se inflammation of Muslim religious sensibilities.

The sad thing (well, one of many sad things) is that the fact that Jews and Muslims share so many holy sites could, in a different world, be a locus point for unity and solidarity. It is, after all, the sign of a common cultural heritage. Instead, we get comments from Mahmoud Abbas saying that Jews "desecrate the mosque with their dirty feet"; because instead of finding joy in shared history, he finds Jews disgusting and their presence contaminating. This is the incitement driving the current wave of violence: the view of Jews as dangerous contagions.

This is hardly the only driver behind the press to erase Jewish connections their own religious holy sites, of course. The ancient character of these sites is also an embarrassment to those who view Jewish presence as purely colonial in character -- as if Israel came to be when a bunch of Germans with "Stein" in their name threw darts to pick a pleasant-seeming summer home. That there are identifiably Jewish sites predating the 20th century belies this narrative; it presents a different one of a common homeland to which Jews and Palestinians alike have a valid claim of patrimony towards. There are various ways to elide this, none of which are anything but historical travesties, but the end result ultimately is flat erasure -- when Jews claim that they find the Cave of the Patriarch's holy, they're just lying. As they do.

In any event, that UNESCO only considers Rachel's Tomb and the Tomb of the Patriarch's part of the lie, and not the Western Wall as well, is apparently a big concession from them. Thank heaven for small victories.

In Praise of the Grinch

The Montgomery County Public School system -- of which I am a proud graduate -- recently decided to stop including religious labels for days off from school. So instead of Christmas Break, we have Winter Break; instead of getting Yom Kippur off, it's just "no school." The decision was made following requests from Muslim students and parents who wanted one of their holidays to be recognized equivalent to how Christmas, Easter, Rosh Hashanah, etc., were. Originally, the plan was apparently just to strip the Jewish holidays of their identification, an amendment instead removed all such religious designations.

I must be the only person outside the school board itself who agrees with this decision. Everybody is unhappy. Conservatives are blaring with their usual war on Christmas schtick. Jezebel blares out a headline "School District Removes Christmas From Calendar to Spite Muslims."

I've long been dismissive of people whose faiths requires government-sponsored training wheels to remain viable. It is one thing when we're talking about genuine religious accommodations -- something I still support even as Hobby Lobby did terrible damage to the concept -- that take away material barriers to one's religious observance. It's another thing entirely to act as if your faith will wilt away unless some official government body gives it appropriate symbolic representation.

Hence, I take a very different conclusion from what Eugene Kontorovich calls "the Menorah Principle" -- that once one minority religious group gets equal religious recognition on par with that enjoyed by the majority faith, all will want it. It is alienating for some religious groups -- but not one's own -- to be given public and official recognition. And I agree that this demonstrates the unworkability of this form of pluralism; it would be impossible to provide actual "equal" recognition to every single faith group in the immensely diverse United States. Kontorovich says that therefore "the only obvious place to draw [the line] is at Christianity." I say that this demonstrates that government is a body particularly ill-suited to "recognizing" religion, and should get out of the game.

The Board justified its decision on the grounds that the days it gives off aren't meant to affirm any particular religious observance, but rather are reflective of days where lots of students and staff are absent anyway. Montgomery County has a disproportionate number of Jewish students who miss school on the high holidays. Perhaps more importantly, they have a high number of Jewish teachers who also miss school, such that the district couldn't effectively staff its classrooms if it didn't declare a holiday that day. That's an entirely reasonable basis for deciding when to close schools. It also in no way requires that the district officially declare that it is closing for "Yom Kippur" (or "Christmas", or whatever).

MCPS isn't "intensifying the contradictions" of religious pluralism, it's resolving them. They made the right call here, and I genuinely fail to see the basis for the backlash they're experiencing.

Defeat from the Jaws of Victory

The township of Southampton, New York, recently denied a request by the local Jewish community to put up an Eruv. For those of you who don't know, an Eruv is an enclosure, generally made through wire or string, which permits Orthodox Jews to do certain activities on Shabbat that would otherwise be forbidden to them (the fiction is that within the Eruv one has one cohesive "space", so carrying objects is characterized as carrying them within the Eruv, rather than between, say, two houses). I generally support accommodations such as these -- they cost little, and signal respect and accommodation toward minority communities. At the same time, American law is generally does not require such accommodations -- it is generally a legislative prerogative as to whether to grant or withhold the accommodation, and don't need to give much of a reason why. While the federal government and some states (I don't know if New York is one) have heightened protections for religious minorities, the baseline is basically that so long as the motive itself isn't unconstitutional (such as hostility towards a particular faith) and isn't wholly arbitrary or capricious, a decision to deny even a relatively minor accommodation such as this would stand.

So basically, Southampton is playing the game on easy. Just give a reason that isn't utterly ludicrous and doesn't openly flout the Constitution. You can do it right?

The zoning board had ruled that the eruv — PVC poles on 15 of Southampton Township’s telephone poles — would “alter the essential character of the neighborhood.”

In addition, the board took theological issue with the concept of the eruv itself, calling it a “loophole” that is “motivated by the personal desire … to be freed from the proscriptions of Jewish law,” the New York Post reported.

The "change the character of the neighborhood" argument ... I dunno. It might fly, given the deference that "arbitrary and capricious" implies. But the second argument about an eruv being a theological "loophole" is a huge mistake by the city that may doom their defense strategy.

It's not that their theology is wrong per se -- I've often joked that Orthodox Jews devote half their creative energies to coming up with ever-more restrictive religious proscriptions, and the other half to inventing increasingly creative ways to circumvent them. The problem, rather, is that they were doing theology at all. And that is a huge First Amendment no-no. Perhaps the clearest and most obvious Establishment Clause violation is the state taking it upon themselves to decide what tenets are valid aspects of a religious faith and which ones are "loopholes."

Without that statement, I'd guess Southampton would have had a fighting chance in court. With it -- good luck.

Our Divine Constitution

It wasn't the first academic piece I had accepted for publication (that would be "When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, which came out in the Dartmouth Law Journal when I was still at Carleton).

It wasn't the first piece of academic scholarship I published in a true law review (that would be my law review comment, The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement). Nor was it the first piece I published as a professor (The Perils and Promise of the Holder Memo), or even the first full-length piece I had accepted for publication (Sticky Slopes, which I believe is scheduled to come out this October).

But nonetheless it is a milestone, and I am pleased to announce the publication of my first full-length law review article to actually hit the presses: Our Divine Constitution, 44 Loy. U. Chi. L.J. 1201 (2013). An abstract is below (I realized that I never actually wrote an abstract for this piece, so I whipped this up in the last 20 minutes).

The presumption that God is omnibenevolent — inherently just, wise, kind, and merciful — is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoken of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself.

In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we think it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.

As always, I'd love you feedback.

It's been a really hard year this year, and it did not go the way I had hoped (to put it mildly). But I can do this, and this article will be the first of many.

Beautiful Scenic Vistas are Just the Gift-Wrapping

This might actually be the dumbest thing I ever read:

Bryan Fischer, the director of issues analysis of the conservative fundamentalist American Family Association, on Thursday told a so-called “expert” who denies climate change that not using God’s fossil fuels would be like “crushing” someone’s feelings by rejecting their birthday present.

The Cornwall Alliance’s Calvin Beisner, who has previously said that believing in climate change “is an insult to God,” explained on Thursday that the Bible said it was also very rude to not use oil, coal and natural gas.

Fischer likened the situation to a birthday present he was given at the age of six. “I opened up a birthday present that I didn’t like, and I said it right out, ‘Oh, I don’t like those,’” the radio host recalled. “And it just crushed — and the person that gave me gift was there. You know, I just kind of blurted it out, ‘I don’t like those.’ And it just crushed that person. It was enormously insensitive of me to do that.”

“And you think, that’s kind of how we’re treating God when he’s given us these gifts of abundant and inexpensive and effective fuel sources,” Fischer added. “And we don’t thank him for it and we don’t use it.”

“You know, God has buried those treasures there because he loves to see us find them.”

Oh my goodness. Although I have to say if you had asked me to predict who would say the dumbest thing I'd ever read, Bryan Fischer would have been a top candidate, right alongside Steve King.

Project Lemonade

Sharia law meets abstinence-only education:

. A new study in the American Sociological Review found that evangelical virginity-pledgers could learn a thing or two from Muslims and Hindus, who are the most likely to actually abstain from premarital and extramarital sex instead of just lying about what went down in the basement over the weekend. What's their secret? Really pretty "True Love Waits" t-shirts? Nope: legal and religious coercion, gender segregation, and never showing any lady skin, ever.
[...]
Those looking for casual sex partners online should try "advanced search"ing for Chosen Ones: a whopping 94 percent of Jews who participated in the study reported having premarital sex, followed by 79 percent of Christians, 65 percent of Buddhists, 43 percent of Muslims and 19 percent of Hindus.

So rather than complaining about how Islamic law is taking over, why not get on that action to actually make a tent on premarital sex rates?

(Actually, the study -- at least as reported in Jezebel which, in fairness, is a considerable caveat -- doesn't seem to have a great answer for why the rate for Hindus is so much lower than the rate for Muslims. As for its Jewish findings -- well, it's good to be a Chosen One sometimes).

A Dramatic Change

A leading Orthodox Jewish Rabbi, Avi Shafran, was given space recently in The Forward to explain his organization's take on homosexuality. The second paragraph made the following eyebrow raising claim:

Whether homosexuality is fixed or changeable remains an open question. There are well-informed people on either side of the issue, but as of yet no incontrovertible proof of a “gay gene.” Whether the Jewish religious tradition is fixed or changeable, however, is not arguable — at least not for Torah-loyal Jews.

Skate past the first part. It's the last sentence which caused my head to tilt a little. Because I would also agree that "whether the Jewish religious tradition is fixed or changeable" is rather inarguable -- I just think the obvious answer is "changeable."

Unlike many Christian sects, Judaism has classically not engaged in Biblical fundamentalism. Rather, the Tanakh is only part of the official religious doctrine governing the Jewish community. Alongside it and carrying equal weight is the Talmud, which, in brief, is a corpus of interpretations and expansions upon Biblical doctrine extending for thousands of years.* The Talmud is basically comprised of countless Rabbis giving their own interpretations on what the Torah, the Tanakh, and other Talmudic stories mean, how they should be interpreted, extended, circumscribed, or modified. It is a vast menagerie of differing opinions, and together it paints a dramatically heterodox and pluralistic picture of what Jewish tradition "says". In essence, Jewish theology was the original common law method.

Through this, it is beyond obvious that Jewish law and tradition has changed, often dramatically, over the years, and is the furthest thing from "fixed". The Talmud is chock full of disagreements, with dissenting and concurring threads diverging into a host of different "schools". Indeed, for much of Jewish history there were two separate Talmuds (Jerusalem and Babylonian). The claim that Rabbi Shafran is making here is internally contradictory -- it itself is attempting to enact a dramatic change in how we think of Jewish traditions, replacing historic fluidity with modern (and dare I say, Christian-influenced) stasis.

* This also caused me to raise an eyebrow to the phrase "Torah-loyal Jews". That, to me, sounds like it should be the motto for Karaite Judaism, but of course, most Jews aren't and have never been Karaites. The dominant thread of Judaism is not "Torah-loyal", or at least, not exclusively so. What it is loyal to is the process of an evolving understanding and uncovering of divine principles as they instantiate themselves in an infinite number of social, historical, and political contexts.

Post-Panel Roundup

The last post was originally meant to just be the intro blurb for a roundup, before it got all long and unwieldy. So I spun it off, and now the roundup gets its own post with its own brief, snazzy intro.

* * *

OneVoice brings in some high profile figures encouraging the development of grassroots momentum for a two-state solution.

Alyssa Rosenberg on the politics of Ellen Raskin novels. The Westing Game is one of my favorite books of all time, and one I can't wait to hand off to my kids.

A new paper shows the existence of racial bias in eBay transactions (specifically, baseball cards shown held by a dark-skinned hand sold for less than those held by a light-skinned hand).

This is probably behind a paywall for most of you, but if you have university access, I found this paper critiquing "moral minimalism" interesting (and I speak as someone who generally identifies as a moral minimalist). The cite is David L. Norton, Moral Minimalism and the Development of Moral Character, 13 Midwest Stud. Phil. 180 (1988).

Mah Rabu says something I've often wanted to stress: Defining Orthodox Judaism as "more religious" and other strands as "less religious" is kind of giving away the game. I'm not a Conservative Jew because I'm too lazy or uncommitted to Judaism to be an Orthodox Jew. I'm a Conservative Jew because I think we do Judaism right. If you're Reform or Reconstructionist, you should have the same confidence in your own beliefs. And while it's fine to experiment and figure out what's best for you, experimentation can and should draw from all sectors of the Jewish community.

Ta-Nehisi Coates hosts David Skeel talking about William Stuntz's views on jury nullification, with reference to Paul Butler. It's a good thing.