Posts Tagged 'Religious Freedom'

About The Indiana Law Allowing Business Owners to Refuse to Aid A Gay Wedding

A new law scheduled to go into effect in the state of Indiana in July, the “Religious Freedom Restoration Act”, is supposedly intended to protect the freedom of religious faith of the people of the state. However, it has met with harsh criticism as it is seen as a license to discriminate against LGBT people. The law is not intended to allow discrimination against gay people simply for being gay, but will apparently allow business owners to refuse to serve gay couples seeking to marry – for instance wedding hall owners opposed to such an event held on their property.

According to the New York Times’ analysis, the law allows companies and individuals to refuse to provide service that will place a “substantial burden” on their religious beliefs. Should their refusal land them in court, the judge would have to balance the burden upon their religious beliefs and the state’s desire to prevent discrimination. CNN’s legal analyst believes that the law will not allow people to decline to serve individual gay persons, but will probably enable people to refuse to aid in any way the celebration of a gay wedding. The issue has already drawn furious protests by the gay community, and condemnations from various activists and politicians (such as Hilary Clinton). The Governor of Connecticut has promised to sign an order banning trips subsidized by his stte to Indiana, as has the Mayor of Seattle. Apple CEO Tim Cook wrote an article decrying the bill, and Ashton Kutcher and Miley Cyrus are tweeting with the hashtag #boycottindiana.

Israeli readers might recall a similar case to come before the Israeli bench. In 2012 Judge Dorit Finestein imposed a 60,000 ILS fine on the guesthouse at Moshav Yad HaShmona, which has refused to hold the wedding of Tal Yaacobovitch and Yael Biran due to their sexual orientation. “The Judge noted that the object of the fine was not only to compensate the couple, but also to educate the public at large in values of equality and human dignity” (from an article by Ilan Lior in Haaretz.) This case had to do with a wedding hall belonging to Messianic Jews, whose faith stood in opposition to the nuptials in question.

Would we accept a wedding hall owner unwilling to rent his hall to a wedding of Blacks/Mizrachis/Jews? Of course not, and in Israel, like in many democracies around the world, there are many laws prohibiting discrimination on the basis of race. What about a wedding hall owner who won’t rent his hall to an interracial wedding? Of course, those same laws will prohibit that as well. And what of a hall owner who won’t rent his hall to religious people? Or secular ones? I think we would not accept such a reality.

So ostensibly, we are unwilling to countenance discrimination against service seekers. But the matter is not so simple. I think none of us will insist that a private service provider (not a public official or public service) has no right, under any circumstance, to refuse service to a customer. Thus, for example, there have been several cases in which clergymen (not business owners) have been sued for their refusal to marry gay couple – which is completely absurd in my opinion. Must a lawyer accept any client, even those he believes to be immoral criminals? Must a plastic surgeon provide breast enlargement to any woman who shows up at his clinic? How can we force a private person to take on a client whom he or she not only doesn’t want to serve, but ones they believe they must not serve?

But let’s focus on halls and weddings. Consider the following example:

You own a wedding hall. You’re an ultra-orthodox Jew. You have a religious problem with renting the hall to Jews on Friday nights and Saturdays, because you believe that Jews are obligated to keep the Sabbath, and you are unwilling to aid in what to you is a transgression. Likewise, you won’t rent the hall to Jews who want non-kosher food catered. You have no problem renting the hall to non-Jews on the weekends or having non-Jews have non-kosher food catered, and of course you have no problem renting to Jews in general.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You’re an atheist and a feminist. You have an ideological problem with renting your hall to religious folks who practice gender separation. You don’t want your hall to feature men sitting apart from women, or only male waiters to serve men and only female waiters to serve women. You have no problem with renting the hall to religious people, but not if they practice such separation. The same goes for religious weddings of minors, age 17, let alone 14. That will not happen in your hall.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You’re vegetarians, or maybe vegans. You don’t offer catering service in your hall, and you allow your clients to hire outside catering services. Although you strenuously object to eating meat, you realize that most people are meat eaters, and are willing to have couples marry in your hall with catering that includes meat. One day a couple comes in wishing to rent the hall. While talking with them you realize that they intend to have catering that serves lobsters. In order for the lobsters to be fresh (and for the added spectacle), they intend to place a giant aquarium in the hall in which the living lobsters will swim, until taken out and thrown live into vats of boiling water. This is too much for you, and you inform the couple that they cannot rent your hall.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. For political and moral reasons, you strenuously object to Israel’s control of the West Bank. You boycott products from the settlements, and won’t rent your hall to people who live in settlements.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You strenuously object to marriage between Jews and non-Jews. For you it’s really not a racial matter, but one of religion and tradition. It is important to you to prevent what you view as a destructive process of diluting and even destroying the Jewish people. You won’t rent your hall for weddings between Jews and non-Jews.

Should you be allowed to operate this way?

Not all of these examples are matching, and we should distinguish them from one another. There is a difference between discriminating against customers on the basis of their race/ethnicity/religion and discriminating against customers on the basis of their actions. The difference stems from the fact that a person’s origin or religion are a deep and essential part of their identity, whereas their actions are not usually a part of their identity. A large part of the human rights discourse is based on what we perceive as sources of identity and deep meaning in our lives. The freedom of expression, for instance, is important not only for the existence of a healthy society with a plurality of opinions and a capacity for self-criticism, but also because one’s ability to express one’s opinions is a central part of one’s self-perception, and one’s dignity. Likewise the freedom of religion and conscience, or most simply put the physical wholeness of our body.

Therefore refusing to rent a hall to someone who boils lobsters alive is not tantamount to refusing to rent a hall to Jews. Likewise, one’s desire to keep one’s hall from hosting a violation of the Sabbath, or the serving of non-kosher food, is not an unfair discrimination, but a protection of one’s religious faith.

And what of a boycott against settlers? Here the matter is more complex. There are people for whom living in Judea and Samaria is a deep part of their identity. They’re not just located in the occupied territories – they are settlers. This is how they perceive themselves; it is a central part of their identity. They view it as a high value and take pride in it. On the other hand, it seems to me that the settler identity is weaker than a Jewish or LGBT one. This is an intermediate case. Is it permissible to discriminate against settlers and refuse to do business with them? When the Boycott Law was passed in Israel, banning calls for boycott based on place of residence, many (myself included) saw it as a base and undemocratic attempt to legitimately oppose the occupation. It seems that many people believe that a private business owner (or consumer) should be allowed to boycott settlers just for being settlers.

Now undoubtedly, homosexuality is a matter of identity, and not of sexual activity. Sexual orientation is considered nowadays as a deep element of a person’s identity, and therefore a central dimension of one’s self-perception and basic dignity. This is why we take such offense at discrimination against LGBT’s – because the logic at the foundation of the human rights discourse leads us to the conclusion that they have equal rights exactly for who they are.

Is it therefore wrong for a private person to refuse to provide a service for gays wishing to get married? Let’s say that person is willing to rent his or her hall for a gay or lesbian person’s birthday party. They have no problem with homosexuality in and of itself – they are not homophobes. They question is must we force such a person to rent their hall specifically for a same-sex marriage, which is to say for the performance of an act they hold to be immoral/contrary to the commandments of God.

Let us compare it to a person unwilling to rent their hall for a wedding with gender separation. By so doing he is basically banning from his business all ultra-orthodox people and most national-religious ones. Is this permissible? We may think it isn’t, and that we should force him. Perhaps we also think same-sex weddings shouldn’t be refused, and that we should force individuals for whom this is against their world-view to rent their hall.

On the other hand, perhaps we think one must not refuse a LGBT wedding but may refuse an ultra-orthodox one. I think that is a legitimate stance, but we must understand that it stems from a particular liberal conception and carries a particular liberal agenda. This is about furthering an agenda based upon the growing discourse of rights, with the position being that the point the discourse of rights has reached in our times is the point to which the law must move. One may refuse to host an ultra-orthodox wedding because they harm the rights of women, and one must not refuse to host a LGBT wedding because their right to marry must not be abridged.

From another perspective one may say that what we have in the last example is an agenda of secularizing the public sphere, like the law forbidding covering one’s face with a burqa in France or the law banning the construction of mosque turrets in Switzerland, that is, a law that consciously overrides a certain religious obligation (in this case the prohibition on same-sex marriage) in order to promote a more secular public sphere.

This is not my position, but as mentioned above I believe it’s a legitimate position. What I’d like to stress is that it is a position. Meaning that there is ideological baggage (let’s say, one promoting liberal democracy and/or secularism). Therefore to the same extent we must recognize that there is nothing obviously true here, and that there can – and should – be public debate between this position and opposing ones.

Rejecting religious or LGBT customers because the nature of the weddings they hold is immoral in the opinion of the hall owner will most likely be perceived by the rejected as a rejection of their identity, and is therefore a very harsh act. However, it can definitely be argued that the rejection is not of religious or LGBT people, but only of the specific act they commit in marriage. Of course this act too reaches far deeper into their identity than eating live-boiled lobsters does into the identity of the diner. This is a far more essential expression of “who they are.” And yet, it can be argued that this still doesn’t turn the rejection of their wedding into a rejection of them. The wedding hall owner can claim to have no problem with observant people or gays, but only with the way they marry.

The context also matters here. If the group discriminated against is a small, weak one which is ostracized by most of society, there is cause for the law to protect it. For instance, if LGBT people were rejected by 90% of wedding halls, and had no reasonable option of holding their weddings, there would be reason for a law to protect them and force hall owners to rent them their halls. I believe the reality is opposite. Hall owners unwilling to rent their halls to same-sex weddings are a minority, and the moral-religious position they hold is becoming less and less accepted in the Western society of our time. See above for a very partial list of those protesting the new law in Indiana to get a picture of the forces that are up against its defenders.

I believe that LGBT people have the right to get married, that is to say, that this is a basic right, and therefore I thing the state should be required to allow same-sex marriage by law (I hope to write about the underlying principles of this sometime). On the other hand, I think that under current conditions, where there is no shortage of halls and officiators who would be glad to host or conduct a same-sex wedding, private business owners should be allowed to retain their beliefs and refuse to hold same-sex weddings in their businesses. This is because society has an interest and an obligation to allow individuals to freely preserve and express their religious and/or moral convictions.

This issue isn’t simple. It involves religion and politics, private morals and legal ruling. It also mixes a certain social perception with a certain political culture, and also a contextual analysis of the facts on the ground. The law in Indiana which allows private people to refuse to take part, as business owners, in a same-sex wedding, defends their private notion of what is good, and this is important. It does not relieve them of the need to justify it, if required, in a court of law. It also does not prevent protests, and even boycotts, by the general public against them. I find this to be a proper balance.

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(I Thank Yael Peled for her enlightening comments on a draft of this article. Of course, all opinions and errors are mine.)

Assembly-line Jewish conversion

The situation resulting from the immigration of hundreds of thousand of people who are not Jews according to halakha (Jewish religious law) during the 1990s poses a tough challenge to Orthodoxy, a challenge it doesn’t seem able to meet. The reason is simple: In contrast to the conservative and technical nature of halakha, public opinion is characterized by flexibility and joie de vivre. While those hundreds of thousands of people are considered non-Jews by halakha, as far as most Israeli citizens are concerned they are Jews in every respect.

In a poll published by Haaretz a month ago, 75 percent of the secular people questioned said they would not try to prevent a marriage between a relative and “a new immigrant who isn’t Jewish according to halakha,” while among the religious-Zionist respondents only 29 percent wouldn’t object to such a marriage and among the Haredim only 5 percent. All told, 56 percent of Israelis wouldn’t make a big deal about a relative marrying one of these hundreds of thousands.

And lest we think that we dealing with broad cosmopolitan pluralism, the same survey revealed that with regard to a relative marrying an Arab or a European Christian, the objection among the total Israeli population would be 72 percent and 53 percent, respectively. In other words, Israelis aren’t open to everything; these veteran immigrants are simply considered by most Israelis to be Jews, whatever the halakha might say.

The recent debate over the “conversion law” proposed by MK Elazar Stern (Hatnuah) blatantly revealed the degree to which this is almost completely an intra-Orthodox struggle. Stern and the Habayit Hayehudi party want to expand the conversion apparatus, while the Haredi parties object. What emerges from this is that if there is no reform in the conversion process, weddings between those who are Jews according to halakha and those who are not will continue, and those who want to avoid marrying their descendents will be forced to keep genealogical records.

The problem is that even if such a reform is enacted, there will still be those among the strictly religious who will not recognize it and will not accept the descendents of such converts as Jews. So either way there will remain a group of Orthodox Jews that will insist, contrary to most of the nation, on relating to part of the people as non-Jews. The struggle over conversion conditions is nothing but an internal Orthodox scuffle aimed at determining the limits of that group.

So here we have another example, one of many, of self-centered patronizing by the State of Israel’s Orthodox establishment. Its members are fighting among themselves for the right to convert people who aren’t interested in converting, to make them eligible to marry people who even now see nothing wrong with them, and all this just so that they themselves will find it easier in the future to see large parts of the Israeli people as Jews – even though Israelis themselves have long ignored the halakhic categories that this group considers so important.

But what makes this ridiculous festival so sad is a deeper issue. This whole story illustrates not just the Orthodox establishment’s narcissism, but also demonstrates in the most extreme fashion how a major proportion of Israeli rabbis take a totally technical and utilitarian view of halakha, and perhaps of the entire Jewish religion.

After all, what’s going on here? We’re talking about conversion, which is probably the deepest, most personal, and most difficult thing a person can do; it’s changing one’s identity, entering a new framework of meaning, and in this case making a covenant with God and the Jewish people. Conversion is being turned into a pathetic bureaucratic matter, a mechanical procedure entirely designed to calm those rabbis so that their children or their neighbors’ children won’t marry non-Jews, so there won’t be “assimilation.” For this they will expand the conversion system, ease the conditions for conversion, and conduct a marketing campaign for joining the Jewish people as if it were soft drinks.

These rabbis don’t seem to care what motivates the converts or what spiritual journey they have been through. The main thing is to accept them and convert them on an assembly line so that there will be as many Jews as possible – that is, more people who agreed to take some classes and say “Amen” to everything they’re told. All this is to get their status changed on their identity card so the only democracy in the Middle East will allow them to get married and in general treat them like human beings.

And if that’s what the rabbinical establishment looks like, is it any wonder that so few people want to convert?

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published today in Haaaretz.

The Ban on Circumcision and How Europe is Denying its Past

Earlier this month the Council of Europe (an international human rights organisation consisting of EU 47 countries whose decisions are of declarative force only) published an announcement regarding “children’s right to physical integrity”. In the announcement the Council came out against various form of intentional bodily harm to children, such as piercing, tattoos, plastic surgery, sex reassignment surgeries in inter-sexed children (something that deserves an article in itself), female genital mutilation (aka “female circumcision”), and male circumcision.

Of course, the last item on the list gave the signal for typical Jewish hysteria. Rabbi Pinchas Goldschmidt, President of the Conference of European Rabbis, declared (Heb) that this is a “new antisemitism”; the Israeli Minister of the Interior, Gideon Saar, also thinks (Heb) it’s “antisemitism”; Dr. Eli Schussheim, Head of the Circumcision committee at the Chief Rabbinate and the Ministry of Health, cried out (Heb) that it is “a plot to spiritually annihilate the Jewish People,” while Foireign Ministry spokesman Yigal Palmor ruled (Heb) that this is “Horrid ignorance, at best, or libel and religious hatred at worst”. Great job.

The debate concerning circumcision is rich with meaning and constitutes a rare intersection of diverse world-views and value-maps. This is why I find it fascinating not only due to its pragmatical angle (will the Jews of Europe be able to circumcise their sons or not, etc,), but because it teaches us about far-reaching social, ethnic and ideological processes underway in Western society. I have written before (Heb) about the post-humanist aspect of banning circumcision. Now I’d like to touch upon its political and ideological aspects.

To start, a few clarifications: Does circumcision inflict permanent damage to the male sexual organ? I believe so. The spokesman for the Foreign Ministry, incidentally, says otherwise, and that there is “no scientific criteria” according to which damage can be proved. I don’t understand him. It is clear to me that removal of the foreskin changes the way the male has sex, and not for the better. On the other hand, is the damage significant? I believe not. I happen to be a circumcised male myself and can attest that everything, thank god, works perfectly fine. So: Does this negligible damage justify banning it? I believe not.

But the damage is not the story. The damage caused to the baby (or the man he will be) is not at the heart of the decision by the European Council. Proof of this can be found in the fact that all those people seeking to ban infant circumcision will stand, vehemently even, on the right of any adult to circumcise himself (or acquire a sex change operation, or plastic surgery, etc,). So the cutting of the genitalia and the damage to the body are not, in themselves, the problem. What is? The problem is that the circumcision is done without the consent and free choice of the baby.

And this is definitely a problem. On the other hand, circumcision is done without the consent of the baby just as many things are done without his or her consent: He or she receives certain food and no other, lives in a certain place and no other, learns a certain language but not another, is sent to a certain kindergarten and school and no other, where he receives a certain education and no other. In addition, parents raise their children to believe in the existence of God / his only begotten crucified son / his special chosen people / the holy virgin / dialectical materialism / the hidden hand / an endless, meaningless universe.

All of the above, done without the consent of the baby and child, shape his life more significantly than the foreskin present or missing from his penis. Even if one believes that the removal of the foreskin causes not slight but severe damage to the sex organ (and this really is unsupported by science), the damage of a bad education is greater. Education is irreversible, just as learning a language, or having a childhood in general. What our parents gave us will accompany us for the rest of our days. Therefore, there is no sense in legally banning circumcision, unless we intend to also ban raising children according to beliefs we don’t like.

Circumsision in ancient Egypt

Human Dignity

But let’s leave all that aside. Let’s say we have shown that focusing on circumcision and ignoring education, beliefs and so on is somewhat inconsistent, perhaps even dishonestly so. I wouldn’t want to defend circumcision just by showing its opponents to be hypocritical. I would like to positively explain why it is important to allow those interested to maintain the ceremony, through an ethical argument stemming from the matter itself. In order to do so I would like to more closely examine the matter of free choice. In other words, why is it a problem that the baby cannot choose to be circumcised? Why are consent and free choice so important to us? A worthy question, is it not?

So. why does free choice attain an almost sanctified position in our eyes, to the point where liberals and libertarians will insist on the rights of perfect strangers to do drugs or sell themselves as prostitutes as long as they truly chose to do so? I think it is so important to us because free choice, our autonomy, our use of will, our freedom to decide one way or the other – all these are essential things that define us, that ground our identity and our dignity, our self regard.

In other words, one of the sources of our own identity nowadays is our free will, and this is why it is considered almost sacred. So much so that we are willing to give up values we care about, and feel unpleasant, just so others can express their free will (up to a point, of course).

Now, here’s something interesting: for many people, even today, religious beliefs, religious traditions and the right to chose them and act upon them are also among the things that define them, their identity and their self-regard. One’s religious faith is among the essential parts of his or her inner life. Therefore, he or she greatly desires to be allowed to live by it and express it. This is also why he or she will sometimes be willing to die for it.

This is not new, but what is new is that in our era liberal democracy recognizes the importance of faith (or lack thereof) to the individual, and therefore insists on religious freedom within its boundaries, letting everyone express their belief – or disbelief – allowing no religious or ideological coercion. Because our religious – or agnostic, or atheistic – persuasions are such an important part of what defines us, what constitutes our identity and dignity, religious freedom is so important to us, and is protected by liberal democracy.

Back to circumcision. When we approach the matter, it wouldn’t be right to weigh freedom of choice against unjustified bodily harm. In such a case obviously we would uphold choice and forbid the bodily harm, even if negligible. But we need, for a moment, to enter the mind of the upholders of tradition. If we take their faith seriously, and we must, we see that there are highly important values on both sides: on the one hand, freedom of choice, denied to the baby; on the other, religious and communal identity, given to him by parents allowed to do so. This is part of the package his parents wish to bequeath unto him, to bring him up by. This is part of the elements of their identity, their self-respect. It’s an essential part of themselves, no less than their free choice. So if we see it thus, both sides of the debate carry values it is important to all of us to preserve.

And now we must decide – which of the two tips the scale? Had the harm to baby been severe, or the social/ethical context been oppressive and degrading (degrading and oppressing what? The very same human dignity we’re trying to defend; the very same human dignity for which we also defend freedom of expression!), then I would think that banning it is justified, even at the cost of denying the parents their freedom of religion.

Is this the case? I think not. I don’t think infant circumcision is problem-free. Definitely not. But I think one can say that in the end the harm done is limited, and the context non-oppressive, and therefore I don’t think that freedom of choice justifies banning the action, which represents such an important element in the lives of those believing in its religious significance. Why? Because it assaults their dignity and the essential values of their lives no less, and I believe far more, than un-chosen circumcision harms the baby’s self-regard.

One more small thing: there’s no point in yelling that there is no god. We will not decide for others what to believe. We will in fact accord them the freedom to believe as they choose, and keep whatever tradition they see fit (within certain boundaries, of course, not to be discussed here). And we require that in the name of their faith or tradition our own freedom of choice would not be limited, nor harm done to our beliefs or the values at the basis of our world-views and self respect.

Isaacs Circumcision as depicted in the Regensburg Pentateuch, Germany 1300

Europe

So what’s up with these Europeans? First of all, I do not believe antisemitism is involved here (the enthusiasm with which it is thrown into every discussion is pathetic). The motive is something else entirely: What we have here is high moral sensitivity (which can be observed in the spread of vegetarianism and veganism – note that the opponents of circumcision also express a worthwhile moral principle and motivation), along with an anti-clerical, anti-theistic tendency, prevalent in current-day Europe, mixed with some confusion.

The spirit of the French revolution is returning, wishing to cleanse the land of religious manifestations. It focuses on acts and attire because that is much easier than banning beliefs. The Council of Europe also spoke about piercing and so on, but we should monitor whether the places that are advancing actual legislation to ban circumcision are also moving to bar parents from piercing their children’s ears or allow them to have tattoos. If not, this is a sign that what the legislator is annoyed at is not the damage to the body, but the impetus to the damage, in our case religious belief. This is, therefore, an attempt to harm the religious freedom of Europeans.

But wait, aren’t there things we’ll ban even though banning them would harm religious freedom? Of course there are. For instance, female genital mutilation. And why? Because by and large it entails much (much) greater damage to the genitalia, and even more importantly, because the context (as I mentioned before) is utterly different: in the case of male circumcision, it is about acceptance of the boy to the community, an enhancement to his dignity and to his social importance. Female circumcision is part of an array of means to suppress woman and control her body; it reduces her dignity and her social standing.

One of the articles on the matter in Hebrew noted that “many of the delegates supported amending the motion so that it won’t include a mention of the parents’ religious rights.” I believe this is the story. The attempt to erase the recognition of citizens’ religious rights. And I find this astonishing. It’s astonishing because by doing so Europe denies its roots. Not its religious roots, but its democratic ones, since the formation of European democracy was based among other things on recognition of the essential place held by religious beliefs in the individual’s life and with the intent of enabling individuals of differing religious beliefs to live together. Religious pluralism – stemming from deep recognition of the value of religion – was one of the building stones of European democracy (although less so than the American version, and not at all in revolutionary France). Therefore these testimonys (and one can add the French “Burqa Law” here) of denying this heritage mark an interesting process.

Jesus's circumsision, Master of Tucher Altarpiece, 15th century

Please note: All of the above is critique of a proposed law banning circumcision. I have nothing against people trying to persuade others not to perform the procedure, and therefore of course nothing against people, Jews included, who do not wish to perform it. I am speaking here only of the right of those who do want, out of traditional-religious considerations, to perform it.

The Rebirth of the Friction Between Religion and State

2013-10-16_122303Under the banner “Multi-Faith Gathering for Peace”, thousands of people marched two weeks ago in Quebec protesting a proposed Charter of Values which, if passed by the state’s government, will prohibit public workers from wearing “conspicuous” religious symbols. In order to prevent any unavoidable subjective interpretation of the term, the Charter makes clear which religious symbols are deemed conspicuous: the Muslim Niqab and Hijab, the Sikh turban, the Jewish Yarmulke and the Christian cross (if large and worn around the neck).

Quite clearly, Quebec, today a part of Canada, is thus following in its ancestral progenitor’s footsteps, seeking to “purify” the public sphere of any religious symbols, just as France did in 2010 with its own law “prohibiting the concealment of the face in public space”, meant to do away with the Burqa and the Chador. No doubt, there is also quite a bit of Islamophobia here, just as in France, though I would suggest that at the bottom of this Islamophobia lies, among simple xenophobia and prejudice, a generous amount of old-fashioned enlightenment-style anti-religious sentiment.

Thus taken, Quebec’s Charter of Values seems to me not, in essence, about spreading or upholding liberty or equality. In truth, I would say, it is more of a reactive and clumsy attempt at defending an extreme version of separation between religion and state, one that was tried for the first time during the early years of the French Revolution, tried again in countries of the former Communist Bloc, failed horribly both times, but continues to live as a phantom in the minds of anti-theists for whom the idea of religious belief insults a particular conception of human dignity.

“The Kantian imperative to have the courage to think for oneself”, wrote Terry Eagleton once, “has involved a contemptuous disregard for the resources of tradition and an infantile view of authority as inherently oppressive.” Ironically, the same Kantian imperative is today enforced by the resources of the state, whose authority, as shown all too clearly in both the French and the Communist revolutions, can be just as much oppressive, if not a whole lot more.

What the current events in Quebec reveal to us is the rebirth of the friction between religion and state, brought about not only by the injection of fresh “belief” by Muslim immigrants to European countries, but also by the rising of new forms of Christian believers in North and South America, renewed struggles and cooperation inside Islam, and a new interest in the Jewish religious life in Israel. It is the frontline where believers and atheists, traditionalists and anti-theists meet, and where, all too often, liberal agnostics find themselves in the awkward position of fearing religious fundamentalists while at the same time envying their conviction.

The idea that religion is the result of some sort of faulty line of reasoning, and thus will gradually disappear as humanity learns to think strait (another inheritance from the Enlightenment), has today been almost completely abandoned by students of the sociology and psychology of religion. As Peter Berger observed, what modernity has indeed brought us in the religious sphere is not religions decline, but its plurality.

“Modernity is not necessarily secularizing; it is necessarily pluralizing” writes Berger, pointing out that what is characteristic of modern society is increasing divergence of religious forms and practices. And while this is far better, I would believe, in the eyes of religious people then the simple dwindling away of faith, it does pose not a small challenge for them, as they now have no choice but to contend with alternative answers to many of the questions their religious life asks. In other words, far from killing religion, what modernity has allowed is a competition between different religions, which, in an open and tolerant society, leads unavoidably to diversity.

If this diversity is not to be the first step on the way to a religious war, it is crucial that the very same open and tolerant society be the background for profound inter-religious dialogue. Speaking of the Enlightenment as we have, we must happily admit that what it has also bequeathed to us is the framework in which different faiths can live side by side, which is liberal democracy. It is by firmly maintaining the principles of liberal democracy on the one hand, and frank and candid dialogue between religious leaders and believers on the other, that a not only a tolerant atmosphere can be maintained, but also actual religiousdevelopment, as religions learn from each other.

Most of all in the Middle East, where religious tension, as well as diversity, is extensive, direct interfaith dialogue is essential. Extremism on all sides must be denounced by religious leaders, and an example set by them through meeting, recognizing and respecting both sides’ representatives and faiths. This will not only (and most importantly) contribute to the religious aspect of our mutual coexistence here, but may even be found beneficial if a multi-faith cooperation is needed in case of an attempt to restrict individual and public religious rights by the state, such as in Quebec. It does, however, call for courageous religious leadership, and the honest will to act not only when a person’s own free exercise of faith is jeopardized, but when the others’ is. I truly hope The Council of Religious Institutions of the Holy Land will rise to the challenge.

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Published on The Council of Religious Institutions of the Holy Land’s Internet site.

Untying the knot: Rethinking the Israeli Rabbinate’s Laws on Marriage

"Safa Ahat Udvarim Ahadim: Iyyunim Bemishpat Vehevra" ("One Language and One Set of Words – Studies in Law, Halachah and Society"), by Pinhas Shifman. Shalom Hartman Institute, Bar-Ilan University and Keter Publishing House, 336 pages

book coverAt the beginning of his (failed) campaign for the position of the next Ashkenazi chief rabbi, Rabbi David Stav published a large paid advertisement in the national-religious daily Makor Rishon. In it, he cited some "shocking facts," as he put it: In recent years, about one-third of all secular couples got married abroad so as not to come in contact with the Chief Rabbinate of Israel. Among them are people who do not accept or do not like the rabbinate’s marriage procedures, and also members of quite a large group of citizens (about 400,000 ) who are not allowed by law to marry in this country, as the Jewish bona fides of at least one member of the couple are questionable in the eyes of the rabbinate.

Forcing certain procedures based on Halakha (traditional Jewish law ) upon the citizens of Israel is therefore ineffective in two respects: It distances Jews who for various reasons are interested in a civil or different type of religious ceremony, and it is not available to citizens whom the rabbinate does not recognize as Jews. On the other hand, there is concern among the religious authorities that various types of civil marriage agreements will lead to a split among the Jewish population, as the religiously observant will not be prepared to enter into marriages with nonobservant Jews or their descendants.

In his new book, Pinhas Shifman attempts to suggest solutions to this complex situation. Shifman, a professor emeritus at the Hebrew University faculty of law, has written numerous books and articles about family law in Israel. A special report he prepared (together with Avishalom Westreich ) for the Metzilah Center for Zionist, Jewish, Liberal and Humanist Thought on the issue of the possibility of civil marriage in the country was, for example, published (in Hebrew ) in March. He is, therefore, exactly the right person to confront this subject.

In the second part of the book in question, Shifman goes into what could be called the "intra-religious" issue because, in his opinion, it is necessary to deal with the difficult problems created vis-a-vis the wedding ceremony due to Orthodox Halakha. Even if secular Israeli Jews are given the opportunity to marry as they see fit, the religiously observant will still have a problem because they have no other options because of their beliefs. Shifman fears that enabling civil marriage would in fact encourage rabbis and rabbinical court judges to ignore the moral difficulties inherent in the halakhic wedding ceremony as it stands today – that is, "anyone who doesn’t want to [get married this way] doesn’t have to and anyone who sees himself as obligated [to do so] can suffer in silence."

Not Just a Civic Matter

Specifically, Shifman is worried about this tendency because it leaves in place certain injustices that exist in Halakha. Issues like agunot (wives whose husbands will not grant them a get, or bill of divorce ), extortion on the part of husbands in delaying the get, and in general the inequity in traditional Jewish marriage rituals which are being ignored and remain unresolved. Even among poskim (rabbinical arbiters ) who are actually concerned about agunot and other women who suffer ill treatment by their husbands – dealing with such problems for the most part boils down to attempts to circumvent them by finding flaws in the particular ceremony from the halakhic perspective and nullifying it retrospectively.

Such ploys demonstrate the problematic nature of the Orthodox marriage ceremony, which turns out to be a stumbling block for the Jewish woman. This is a terrible reality, in the author’s opinion, because it leads to the conclusion that "the more people refrain from behaving in accordance with Halakha, the better off they will be and the less they will suffer." When Shifman moves on to various suggestions for changing nuptial arrangements for couples, he tries to take into account not only the suffering of secular Jews who are subjected to religious laws in which they have no interest, but also the pain of men and women who are religiously observant and are subjected to a rabbinical law in which they are interested, but which is also characterized by a cruel and insulting lack of justice.

The Possible Solutions

He brings up various possibilities for altering the existing situation, each with its own inherent problems. In addition to the most meager of the possibilities, which would in general permit marriages only between two people who are not presently allowed to marry each other under Halakha – Shifman examines the possibility of allowing civil marriage alongside marriage as per religious law, so that each couple would be able to decide in which manner, via which establishment, they want to seal their marital covenant. The disadvantage would be open competition between these two establishments, which is liable to lead to alienation on the part of the religious public. Moreover, this approach would exacerbate the problem of agunot and women whose receipt of a get is being delayed, since religiously observant couples who marry under the auspices of the rabbinate would be subject to Halakha and thus not be able to seek help from the civil court.

Another possibility Shifman mentions, which prevails in some European countries, is a uniform civil law for everyone. In this case the state is perceived as responsible for proper civic order and marriage by means of state authorities is the only valid marriage. Citizens who are interested in marrying in a special ceremony are respected and are married by, for example, their rabbi, minister, spiritual leader etc. In a situation like this, ostensibly there is no competition between civil and religious law, and divorce is also egalitarian because even religious women are in general protected by the state.

The Malicious Combination of Halakha and Bureaucracy

If a woman who has been married in a Halakhic ceremony gets divorced only via a civil procedure and then remarries – her children from her latest marriage become mamzerim (or, bastards; in Halakha, that is what a child is called who is born to a woman who is still married ac cording to religious law, and fathered by another man who is not her husband ). This possibility might precipitate the usual threat by Orthodox Jewry to construct lists (or "family trees" ) of names, in order to ensure that all those who marry by civil law and their descendants would be prohibited from marrying anyone who is religiously observant.

However, Shifman notes that even today millions of nonreligious Jews in the United States, for example, choose to marry according to civil law and, of course, also divorce that way, and no one is talking about shunning all American Jews – i.e., not marrying them. In the author’s opinion, this problem, like others, requires "broad emendation of regulations in Halakha that will provide a universal and principled solution." And once again he criticizes the lack of interest on the part of today’s halakhic arbiters in investigating thoroughly and eventually changing what needs to be changed in traditional Jewish law.

The matter of bastardy demonstrates a problem unique to our times, which has not been accorded a solution by that law. In the past, a Jew suspected of bastardy, or an aguna or a woman whose bill of divorcement is being delayed, could possibly, in their distress, move to another Jewish community where nobody knew them and build a new life. But our era, in which when everything is registered, documented and computerized, does not allow for reasonable doubt as to an individual’s identity, doubt that in other periods sufficed to qualify a person for marriage (from "a family that has been accepted … is accepted," Tractate Kiddushin 70-A ).

Rabbi Joseph di Trani (1538-1639 ), known as the Maharit, also ruled to the effect that, "Anyone who knows of a flaw [vis-a-vis] someone’s marital eligability is not permitted to reveal it, but will leave it as if it were kosher." This points to the malicious combination of Halakha and bureaucracy that is unique to the modern era.

Nor does Shifman spare criticism when it comes to secular Israeli Jews who seek to institutionalize civil marriage. His treatment of court rulings that equate single-sex couple relationships to marriage is fascinating, and dwells on the question of the secular insistence on using the term "marriage," which he says expresses a definite religious and traditional institution, while attempting to foment a radical change – via the courts – in its original meaning.

Morality, Religious and Natural

Finally, Shifman examines local rulings that have led to equating the rights of common-law partners to those of married people. He discusses in detail three rulings by former Supreme Court President Aharon Barak, who, in a sophisticated way helped to wage a quiet revolution with respect to personal status in Israeli law. Thanks to his efforts, the court recognized and legitimized marriages undertaken by Israeli citizens abroad – initially with respect to couples who in any case could have married in the country, and subsequently with respect to couples who could not have married here legally (one case involved a Jewish man who married a Christian woman ) – and finally marriages involving single-sex couples. In this way marriage abroad finally became the semi-official (if expensive ) way of entering into a civil marriage in Israel.

The first part of Shifman’s book deals with an artificial distinction between Halakha and morality, based on the idea that God’s commandments should be the sole basis for understanding what is good and what is evil, and any consideration external to Halakha constitutes a surrender to the liberal fashions of our times. The clinging to a specific religious precept, even if it may be illogical or in direct contradiction to one’s conscience, is considered by the believer to be a courageous effort to abide by the word of God and creates the desired experience of "authenticity." But Shifman shows that such a perception itself quite a new phenomenon and its primary framer in Israel was none other than the late Prof. Yeshayahu Leibowitz (and in the United States, Rabbi Joseph Ber Soloveitchik ). He reminds readers that without an independent sense of morality, which is not connected to Halakha per se, lofty concepts of the sages like lifnim meshurat hadin (beyond the letter of the law ), derekh eretz (common courtesy ) and darkei shalom ([toward] a peaceful way ) become meaningless.

The same holds for the concept of naval bereshut hatorah (roughly, "a Torah pedant but a scoundrel" ), attributed to Nachmanides in the 13th century, and comments by Rabbi Naphtali Zevi Judah Berlin (1817-1893 ) condemning "righteous men and hasids" who are not "honest in the ways of the world." The halakhic tradition itself is full of examples of the influence of natural morality on the law.

Shifman criticizes Leibowitz’s approach, which aims to protect the primacy of Halakha by disengaging its precepts from the daily, transient world, that also disconnects it from reason and the heart. According to Shifman, this approach has trickled down, in fact, into the ranks of Gush Emunim (the religious movement for settlement in the territories ), Leibowitz’s major ideological rivals: Shifman quotes remarks by settler Rabbi Shlomo Aviner that purport to be based on the views of Rabbi Abraham Isaac Hacohen Kook (1865-1935 ), but are really very similar to those of Leibowitz. In fact, it was Kook who said fear of heaven that ignores natural morality "is no longer pure fear of heaven."

Shifman’s criticism is also rooted in principle since it holds that "the existing richness of a plethora of sources and opinions in Halakha sharpens even further the conclusion that it is impossible to imagine a ruling in which the arbiter discounts the personal element – that is, a ruling that is not affected by the arbiter’s own value judgment."

In other words, there is no rabbinical law that is not born out of a certain moral position. From within this insight Shifman attacks the imperviousness of many rabbis toward women who are unable to receive a get, people who are deemed bastards and other individuals whose "credentials" as Jews are in question. He accuses such authorities of doing nothing, and writes: "A claim that a rabbinical sage is unable to be of help because it is not within his reach is very often a political decision in disguise that allows him to avoid dealing with the difficult questions of values underlying that decision."

Shifman’s book is a sharp indictment of the dissembling sanctimony of the Orthodox rabbis of our day and the fact that they cling to so-called Halakha as an excuse for standing still and stagnating. It’s not that they can’t do anything, they simply don’t want to. It’s not a matter of impotence, but rather a values-based stance. In a reality in which many couples shun the offices of the rabbinate, Shifman’s book is timely. His treatment of issues in family law in Israel is learned and profound, and his criticism of the situation of rabbinical rulings in our day, criticism that comes from within the world of Torah and Halakha, is sharp and precise. The associates of the new chief rabbi who will be selected in a few months’ time would do well to bring Shifman’s book as a gift on the occasion of his appointment.

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Published in Haaretz on 29.3.13


Tomer Persico

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