Rosh Hashanah 5776

As we all feel Rosh Hashanah barreling down on us (or is it we who are barreling down on it?), I find myself particularly drawn to two stories in the news and, even more than just to their interesting detail, to the lesson embedded in them both for all of us as we approach the Days of Awe. Both involve people—in these specific cases, two women—who are trying to remain faithful to their own principles in a world that seems only to want them to abandon them or at least temporarily to set them aside.

The first, and as of now by far the better known, is Kim Davis, the county clerk of Rowan County, Kentucky, who spent five days in jail last week because she refused to issue marriage licenses to two gay couples who applied for them. (To give her her due, she also denied licenses to several heterosexual couples, thus, I suppose, hoping to avoid charges of discrimination by serving no one at all…equally.) Even so, this all led to a court order instructing her to issue licenses to all couples who had been denied service, but she refused to obey and instead instructed her own attorneys to file an emergency application with the Supreme Court that, had it been granted, would have stayed the lower court’s ruling until she could pursue an appeal. Unimpressed, the Supreme Court declined to act, but Clerk Davis continued to refuse to issue the licenses, now claiming herself not to be under the jurisdiction of the Supreme Court after all, but to be acting instead under “God’s authority.” On September 3, she was found to be in contempt of court and was sent to jail. And there she remained for five days until federal district judge David Bunning, a judge of the United States District Court for the Eastern District of Kentucky, ordered her released on the condition that she not impede the issuance of same-sex marriage licenses by others in her office.

Whether she will comply with this eminently reasonable compromise remains to be seen. (Since she can comply by not doing anything at all other than allowing other county employees to do their job, it seems unlikely she can claim that she is being forced by the government or by the courts to betray her conscience or to go against her religious principles.) The Attorney General of Kentucky, Jack Conway, now has the unenviable task of deciding whether or not to pursue a charge of official misconduct in the matter.

The other woman in the news is Charee Stanley, a flight attendant who works for ExpressJet, an Atlanta-based regional airline. And she too is in the news because she wishes not to be obliged by her employers to behave contrary to her religious principles. A recent convert to Islam, Stanley only recently discovered that her new faith not only prohibits her from drinking alcohol but also from serving it to others. And, with that, she announced that she no longer would serve alcoholic drinks to ExpressJet passengers. For a while, the obvious compromise—that she serve the non-alcoholic drinks and that a different attendant serve the alcoholic ones—worked well. But then there were complaints from her co-workers that they were, in effect, being obliged to do her work, whereupon she was placed on administrative leave. To that development, Flight Attendant Stanley responded by lodging a charge of discrimination with the Equal Employment Opportunity Commission, the federal agency charged with enforcing laws prohibiting workplace discrimination, who now will decide whether there is probable cause that discrimination occurred.

The cases are not exactly parallel, but both concern employees who wish not to perform one of the tasks associated with their jobs because they are opposed on principle to doing so. Leaving aside the obvious difficulty in applying the requirement of Title VII of the Civil Rights Act of 1964 that employers  reasonably  accommodate their employees’ religious beliefs “unless it would be an undue hardship on the employer's operation of its business,” the situation feels almost intractable: surely employers can reasonably expect their employees to do their jobs, but it feels just as wrong to imagine that employees in a free nation should be obliged to betray their own moral or religious principles or lose their jobs. Nor does it help particularly that the word “undue” in that last expression is also open to widely varying interpretation.

These cases will eventually be resolved, but I write today not specifically to declare myself one way or the other in their regard—although both seem easily resolvable if the parties involved are open to reasonable compromise—but to suggest that they could form an interesting backdrop to the work of the High Holiday season almost upon us.

Most of us find comfort in the fact that we aren’t murderers or thieves who need to fear God in the way actual criminals naturally fear being tried in courts of law. We find that line of thinking calming, and particularly when we arrive at Unetaneh Tokef and the cantor sings of all humankind passing one by one before God like sheep passing beneath a shepherd’s staff as our divine Judge evaluates us one by one, passing judgment, and then either inscribing us or not inscribing us for good in the great Book of Life. But the great confession that we finally recite on Yom Kippur—the Al Chet litany of sin and wrongdoing—doesn’t actually mention murder or theft…or any of the kind of crimes for which one could actually end up arrested by the police and tried in a court of law. All of the sins listed—forty-four in all—are ethical missteps that lead, not to bloodshed or violence, but to a betrayal of our own principles. Nor are the principles listed ones foisted upon us from without, but are rather the ones we ourselves endlessly insist we hold dear, that we truly cherish. It is those missteps, those brief, almost unnoticeable instances of stepping away from a self-proclaimed value or of betraying a moral principle that are on the list…because, each in its own way, leads us away from the principled, virtuous life we all insist we want as our own.

I suppose that even Kim Davis knew that she’d eventually have to find some way to live with the law, that she was going to have to compromise. I imagine that Charee Stanley knows that too, that she will have to find a way to maintain her principles and do her job. I imagine all my readers have strong feelings about both cases. But it’s so easy to know how other people should behave and so difficult to know personally when to hold ‘em and when to fold ‘em, when to insist on behaving according to pre-accepted moral principles and when reasonably and rationally to step away from them long enough to accommodate…a friend, a co-worker, an employer, a parent, a child, whomever.

I face this almost every day of my professional life, this unwanted, unexpected, highly unpleasant obligation suddenly to decide whether to draw the line and stand firm or whether to step back, whether to be less strident for the sake of a greater good, to be less strict—with myself or with others—so as to achieve something that will not be achievable at all without a bit of moral flexibility on my part. Does that expression, “moral flexibility,” even mean anything? Or is it just a flowery way to justify behavior I know in my heart is incorrect yet which some given situation seems nevertheless to require? Even the notion of the greater good is a slippery fish to try to hold in your bare hands for too long: the phrase usually implies some larger and desirable goal that will be achieved by abandoning some self-imposed rule or principle that at the moment is serving merely to impede this much more important good thing. But can virtue come from the abandonment of virtue? Can it ever be right to be wrong? Are we being reasonable and good-hearted by compromising even on values we have maintained for a lifetime for the sake of achieving some momentarily desirable end? Or are we merely making ourselves feel less bad about behaving poorly by telling ourselves that there are no absolutes in ethics, no moral stone so fixed in place that it can never be appropriate moved to the side just for a moment?

These are difficult, stress-inducing questions for all of us to ponder as the holidays approach. Like everybody, I like to think of myself as a fine person possessed of the finest moral qualities. But when Elul is upon us and I begin the slow effort painfully to review my year and honestly, even if just within the chambers of my own heart, to ask myself if I lived up to the standards I so regularly proudly trumpet as my own…the ease with which I use phrases like “the greater good” and “moral flexibility” makes me feel unsettled, even slightly queasy. I don’t put these ideas down on paper because I wish to answer them in public with respect to myself, but merely to demonstrate that they can be asked. And they can be answered too…but only by people willing to set down the attractive portraits of themselves behind which they generally hide and step forthrightly and honestly into the light. It isn’t easy. It certainly isn’t pleasant. But it’s the key to a meaningful chag and I wish us all the fortitude to make ourselves truly ready for the season almost upon us in just that way. And, of course, I also wish you all a shanah tovah u-m’tukah, a happy and healthy new year for us all and our families, and a year of shalom al yisrael…a year of peace for the House of Israel in all the lands of our dispersion and in Israel.