Standing Your Ground

Like all of you, I’m sure, I’ve spent time the course of these last weeks pondering the case of poor Trayvon Martin, the unarmed teenager who was shot and killed at the end of February by the community watch coordinator in a gated community near Orlando, Florida. How this will all play itself out in the courts, who knows? Whether George Zimmerman, the shooter, will eventually be convicted of second-degree murder remains to be seen. If this will turn out to be a precedent-setting trial with far-reaching implications or merely a case of someone being made to pay the price for behaving recklessly in public can also not yet be known. From every vantage point, in fact, there are far more questions so far than there are answers. As the arraignment of the shooter is only scheduled for the end of May, it seems clear that this is going to remain a raw, upsetting issue for Americans to contemplate well into the summer and probably long after the summer as well. And it also goes without saying that the specific way Florida’s bizarre “Stand Your Ground” law will be interpreted in the context of the incident at hand—an interpretation that has yet to become obvious to anyone, including, it seems, our most senior jurists—will be at the heart of the matter.

Yet, for all the lack of clarity regarding all the issues mentioned above, there are also many aspects to the story regarding which all Americans can surely agree. The death of a child is a tragedy for us all regardless of the circumstances that bring it about, an unspeakable horror for that child’s family, a disaster for any society that wishes to think of itself as civilized and secure. Trayvon leaves behind parents and an older brother, and we can surely all agree that their grief does not need to be explained or justified with reference to what the boy may or may not have done in the minutes prior to his death. And, of course, none of us can dispute that whatever good Trayvon might have done in the world had he lived will now be left undone. (Whether the same will eventually have to be said of George Zimmerman will depend on the outcome of his trial.) Nor do I think this national paroxysm of emotion we have been experiencing over the last month and a half has been unhealthy or unwarranted. Indeed, I am proud to be part of a nation that grieves for the loss of a single child regardless of its circumstances and regardless of whether that child’s death does or does not turn out eventually to be a legally punishable offense. And the recently re-opened investigation into the 1979 disappearance of little Etan Patz leaves me feeling the same way: horrified and dismayed by the story itself, but also proud to be part of a nation that considers it entirely reasonable to pursue the disappearance of a single child this long after the fact even if the only truly plausible outcome to the renewed interest in the case seems now to be the possibility of bringing some belated closure to his parents.

Today, however, I would like to write specifically about the “Stand Your Ground” law that is at the heart of the Trayvon Martin case and which is similar to laws on the books in sixteen other states as well, New York State not included. To understand those laws, however, it is necessary first to understand the legal principle called the Castle Doctrine, which is defined the most simply as the right any home owner has—because a persons’ home is his “castle”—to use force, including deadly force, against an unwanted intruder when, as the New Jersey version of the law reads, “the actor reasonably fears imminent peril of death or serious bodily harm to himself or another." The idea is simple, then: if someone invades your house and you feel reasonably that your life or anyone’s life, or your or anyone else’s physical wellbeing, is in serious danger, you have the right to attack that person without becoming liable to subsequent prosecution. The concept of the “Stand Your Ground” law is simply the same concept applied to wherever an individual might be when he or she reasonably fears imminent peril, and not just one’s home or (in some versions of the Castle Doctrine) one’s car or workplace.

As noted, there are sixteen states along with Florida that have expanded laws based on the Castle Doctrine into laws loosely called "Stand Your Ground" laws. (These laws have also been called “Line in the Sand” laws or “No Duty to Retreat” laws, but in the wake of the Trayvon Martin affair it seems the “Stand Your Ground” label will be the one that sticks.) Nor is this a specifically Floridian issue: all together there are thirty-two states, not including New York, that have or are currently considering enacting some version of Castle Doctrine or “Stand Your Ground” laws on the books.

From a Jewish point of view, the most interesting part of the issue has to do with the concept of self-definition: the right to self-defend using deadly force without needing to fear subsequent prosecution becomes operative when an individual, to cite the Arizona version of the law, “reasonably believes himself or another person to be in imminent peril of death or serious physical injury.” In other words, the laws grants an individual the right to act on how he or she feels at any given moment regardless of how an uninvolved bystander might understand the situation and also regardless of any details regarding the situation that come out afterwards, for example as part of a police investigation, but which the individual applying the deadly force has no way of knowing at the moment. It’s all about how you feel, about whether you self-define as an individual in imminent peril of death or physical injury.

Should thoughtful citizens condemn these laws simply because no legal system can function well—or even, perhaps, at all—when accused individuals can simply announce that they felt some specific way at the time of some specific incident, then walk away from the proceedings secure that no prosecutor, no matter how skilled, can prove beyond any sort of reasonable doubt that that person was not feeling that way at the time of the incident? You could argue just that, I think, and reasonably. And yet Scriptural precedent is equivocal. I am thinking specifically of the passage in Deuteronomy that sets forth the various grounds for exemption from military service. (My colleague and my friend, Rabbi Ben Kramer, has just been writing about these laws and I’ve been reading along as he’s worked, so my understanding of this specific passage is based to a certain extent on his interpretive efforts.) The law as set forth in Deuteronomy 20 seems to be based on the rational supposition that the ability of an army to fight effectively will be seriously hampered by having in the ranks individuals whose hearts will be elsewhere and who consequently will possibly be thinking more of their own survival than of playing whatever role necessary to achieve victory.

There are four grounds for exemption, of which three seem to go together. If a soldier, for example, has betrothed a woman but not actually married her, he is deemed exempt from military service because he will be overly focused on the possibility of some other man marrying his betrothed should he die on the battlefield. The same situation pertains for the soldier who recently has built a new home but has not yet moved into it (the Torah talks a bit vaguely about “dedicating” the house, presumably by affixing a m’zuzah to the doorpost and moving in)—he too, it is feared, will be over-focused on his own survival and the concomitant possibility of someone else moving into his new home in his place. And the same too applied to the soldier who recently has planted a vineyard, but who has yet to harvest from it its grapes—his mind too could possibly be elsewhere—and specifically on his own survival instead of the good of the fighting corps—and so he too must be exempted from service. These three exemptions are easy to understand and easy to prove: either a soldier is or is not engaged to be wed, and he should be able easily enough to prove his status, as should the owner of a new home or a new vineyard. But the fourth category is the more interesting one, as it grants an exemption from service to the timorous, faint-hearted soldier, who must be sent home not because of unfinished business elsewhere but simply because, as the Torah says explicitly, his terrified presence will demoralize his fellow soldiers and induce in them the same fearfulness to which he himself has fallen prey.

Interestingly, the Torah itself sets this fourth exemption apart, setting it clearly on its own and in its own category but without saying exactly why. What the ultimate reason is, who can say? (Rashi has the idea, based on a passage in the Talmud, that it has to do with who formally announced the exemptions to the men in the ranks, but that is only one possible explanation.) In my opinion, thinking along with Ben Kramer here, the issue has to do specifically with the question of an individual’s right to self-define.
The sages in ancient times debated whether there needed to be physical evidence of the soldier’s pusillanimousness or if the soldier could simply announce that he feels too terrified of battle—for whatever reasons at all—and needs to be permitted to go home. There are many different opinions regarding how such inner terror could be adequately “proven” (one idea in the Talmud is that the test should be whether a man can keep his bladder closed when he is shown an unsheathed sword), but the law ultimately requires that the soldier’s inner fearfulness be manifested in some demonstrable way: merely saying he feels that way is not to be enough.

I think that line of thinking could be thoughtfully applied to the debate surrounding the “Stand Your Ground” laws. Clearly, there are moments when anyone can prove that his life is in danger. One can imagine many scenarios in which any reasonable onlooker would conclude as much, and the right to defend one’s own life, or the life of another person, against imminent attack is a basic human right. The question worthy of debate has to do with the degree to which one can self-excuse for using deadly force against another person by self-defining as someone who felt his or her life to be in danger. Is it reasonable simply to require a defendant to assert as much under oath? That seems to be the way the laws in many states are written. But even our sages in ancient times understood the perils involved in allowing such an unbridled right to self-define to function as a get-out-of-jail (or, in the Scriptural mode, a get-out-of-the-army) card. It seems to me that a legal system cannot function well if accused individuals are awarded the right to avoid responsibility for their actions merely by saying after the fact how they felt at the time. If a jury of reasonable citizens cannot be convinced that they too would have felt their lives in danger had they been in the defendant’s shoes at the specific moment under consideration, then the mere assertion that one felt oneself to be in danger should not be enough to require a verdict of not guilty.

Yom Ha-atzma'ut 5772

The best Yom Ha-atzma’ut of my life was in 1984. We were living in Jerusalem that year, because I had the great good fortune to have been awarded a post-doctoral fellowship for a year’s worth of research and study at the Hebrew University. (This was before I came to my senses and remembered that I had become a rabbi in the first place to serve actual Jewish people in the congregational setting, not to lecture to mostly non-Jewish undergraduates in university classrooms.) My oldest son, Max, had been born a week earlier. Even that is a bit of a story—no one plans for a child to be born on Yom Ha-shoah, obviously, but that was nonetheless when Max ended up entering the world. At first, Joan and I were both a bit dismayed, confused by the weirdness of the greatest day of our lives to date falling precisely on the Jewish people’s national day of remembrance for the k’doshim who perished during the Holocaust. But once we calmed down, we saw things differently.

My whole life, I think it is fair to say, had to that point been one long, complicated response to the Shoah. In many ways, it still is. (The same could be said, probably, for most of us. But we do differ in how we embrace that thought, or even if we allow ourselves to embrace it in terms of actual life choices and not merely worldview.) For me personally, even despite having spent a lifetime in the congregational rabbinate, I believe that the most profound way in which I have personally responded to the Shoah was to marry and then to become the father of Jewish children, thus seeing to it as best I could that the Jewish people would rise from the ashes, if not quite phoenix-like than at least in terms of me personally doing what I could to create a viable future generation of engaged, committed Jewish young people. And so, at least eventually, Joan and I concluded that perhaps giving birth to a firstborn child on Yom Ha-shoah—and in the thriving capital city of an independent Jewish state, no less—was not something to be regretted or stoically accepted, but rather something to be embraced, to be considered richly meaningful and deeply satisfying. And so was Max born on Yom Ha-shoah in 1984, forty-one years almost to the day after the Jews of Warsaw—and my father’s people came originally from a shtetl just outside Warsaw—rose up in their futile, yet incredibly noble, effort to die not as victims but as heroes. Could any of those people fighting the Germans in Warsaw have imagined my little baby being born in the thriving capital of a Jewish state possessed of its own powerful army just four decades later? I doubt it! But I, blessed (as are we all) with hindsight, could see them…and I could also see my baby, my little Yerushalmi, coming into the world precisely on a day that once Jewish children only died.

Boys born on Yom Ha-shoah, like all Jewish healthy boys, have their brit milah eight days later. Yom Ha-shoah falls on the twenty-seventh of Nisan. Normally, Yom Ha-atzma’ut is eight days after Yom Ha-shoah, but the dates are altered slightly from year to year to avoid interference with Shabbat observance. And so it came to pass in 1984 that eight days after the day of Max’s birth was not Yom Ha-atzma’ut at all, but Yom Ha-zikaron, the Memorial Day devoted to remembering both the members of the Israel Defense Forces who died in the service of their country and also those who died before statehood was proclaimed in the effort to create a Jewish state in the land of Israel. It’s a somber day in Israel, one that is marked with memorial ceremonies, with some national minutes of silence, and with a general sense of somber gratitude to those who paid the ultimate price so that the State might come into being, then endure. And Yom Ha-zikaron is always followed immediately by Yom Ha-atzma’ut, Israel Independence Day, which commemorates specifically the day on the Jewish calendar, the fifth of Iyar, on which statehood was proclaimed in 1948. Max’s whole first week was fraught with symbolism! His bris, held in the gorgeous home of friends of ours on Tel Chai Street in the Katamon section of Jerusalem, was held in the late afternoon on Yom Ha-zikaron.

It was a warm day. My mother-in-law and I made the trek to Machane Yehudah earlier in the day to buy fruit and cakes and other treats to serve to our guests. The brit milah itself was fine. (By that I mean that the mohel was fine and our guests were fine. The sandek, Joan’s great-uncle Mordechai, was fine too. As first-time parents, Joan and I were slightly in shock.) But the best part was still to come: evening fell, the sky was suddenly filled with fireworks, our baby was fast asleep, and the entire nation began to celebrate…not precisely Max’s entry into the covenant, but its own birthday, the birthday of the State of Israel. Now that was a Yom Ha-atzma’ut to remember!

Since then, no Yom Ha-atzma’ut has come or gone without bringing me back to those days in Jerusalem. As you all know, I harbor no ambivalence at all about my Zionism or about my unyielding support for the State of Israel. I’ve just finished reading Simon Sebag Montefiore’s book, Jerusalem: A Biography, which I heartily recommend to you all. It is a long read, but a fascinating one…and one that will bring to your attention all sorts of details about Jewish history and about the history specifically of the Jewish community in Jerusalem that you will probably not have known. (Many of them, I too did not know.) It is a rich book, a powerful book…but its power for me personally lay not in the accuracy of its detail (which is impressive in its own right), but in the backdrop it provided for my family’s great Yom Ha-atzma’ut in 1984.

Obviously, I had known that there have been Jews living in Jerusalem since biblical times. But the almost unimaginable tenacity that has made permanent the bond between a people and its holiest city is what Montefiore brings to the fore in his book, which also describes in detail the background of the Arab sense of Jerusalem being one of Islam’s holy cities and also the history of Christian Jerusalem and its relationship to world Christendom. I came away from reading the book deeply imbued with a sense that our family’s minuscule role in the history of the city—Joan and I are, after all, the parents of one single Jewish Yerushalmi among millions and were the hosts of one single brit milah among the brisses of millennia—has a context that makes it not only meaningful, but profoundly so.

Yom Ha-zikaron falls next week on Wednesday. Yom Ha-atzma’ut in on Thursday. We in the diaspora have chosen to live on the sidelines, yet we should not allow that thought to justify a sense of disengagement from either event. Therefore, I recommend two simple, highly doable ways of commemorating both days. On Yom Ha-zikaron, I suggest that you consider lighting a yahrtzeit candle in memory of all those who gave their lives so that Israel might live. And on Yom Ha-atzma’ut, I suggest you consider coming to shul and there reciting the version of the Al Ha-nissim prayer we add to the Amidah on that day only, the one that acknowledges the victory of newly-born Israel over its mighty enemies as a miracle for which Jews everywhere should be grateful. It isn’t much. No one will know that you light a candle or, other than everyone else who shows up, that you came to shul. I can promise you they’ll be having way more fun in Israel! But both acts would be something rather than nothing…and pausing on Yom Ha-zikaron to remember those who gave their lives so that Israel might live and then again on Yom Ha-atzma’ut to thank God that we were all privileged to see the a thriving, self-reliant Jewish state in the land of Israel in our own day—that doesn’t sound like such an inappropriate way to nod to two days that only appear at first blush to be more about Israelis than about American Jews such as ourselves.

Remembering - Pesach 2012

Can it really be that Pesach is so soon upon us? Part of me is always caught unawares as this holiday more than any other feels as though it sneaks up on us—and, yes, there may be a bit of denial in there, which is not only the river in this particular tale we are about to tell—but perhaps this year part of the reason I’m feeling that way especially profoundly is because the winter never really came, thus making it that much more disorienting for spring suddenly to have arrived and, with it, Pesach, called in our tradition chag ha-aviv, the springtime holiday. But another part has to do with the nature of Pesach itself, for in its own way, Pesach is the quintessential festival of unexpected things.

We naturally tend to focus on the end of the story, but the truth is that the Israelites were enslaved in Egypt for many centuries. In Parashat Bo, for example, the Torah gives the specific number of 430 as the sum total of the years that Israel was in Egypt. We rarely think of the story in terms of those long, unaccounted-for centuries, but there’s something there well worth contemplating. To say the same thing in other words, the Israelites we always focus on are the ones whom God led forth with “a mighty hand and an outstretched arm.” But those were the lucky ones, the liberated ones who escaped, the ones with whom the Haggadah wants us to self-identify…but 430 is a very long prelude to the story and that part of the tale is obviously about the Israelites who did not leave Egypt, who never met Moses, who groaned under the exhausting burden of their labors, but whom no one brought forth anywhere other than to another week of slaves’ work. The story we tell at the seder is about the lucky ones. But there were a lot of unlucky ones too, people whose stories are just a bit too blithely passed over.

In response to that thought, I suggest that we take a moment to consider that number, 430. To set that figure in its modern context, 430 years ago was 1582. Does that feel like a long time ago? It should! The Gregorian calendar has just been invented. (1582 was the one solar year in recorded history that had way fewer than 365 days in it. In most of Europe, by virtue of a papal bull imposing a new calendar on the West, Thursday, October 4, was followed directly by Friday, October 15. So if someone ever asks you what happened, say, on October 13, 1582, the correct answer is absolutely nothing!) The new calendar wasn’t the only news that year, however. The eighteen-year-old Shakespeare married Anne Hathaway, a woman eight years his senior, that year as well. Teresa of Avila, one of the greatest Christian mystics (whose autobiography I recommend to you enthusiastically as an exquisite example of spiritual introspection well worth anyone’s time to peruse), died that year.

But can any of us name any of our direct ancestors who were alive in 1582? I am more or less certain that not one of us can! And I also cannot. We all must have had ancestors alive then, the men and women who produced offspring whose further reproductive efforts eventually led to all of us being born to our parents, their direct descendants. Yet they are lost to us, those men and women, and in that mysterious way that the past simply slips away even despite our best efforts to hold on tight. Most of us could only guess vaguely where those ancestors—the great-great-grandparents, say, of our grandparents’ great-grandparents—would have lived. (I’ve observed many times from the bimah that only the smallest number of us can name all eight of his or her eight great-grandparents, let alone name all sixteen great-great-grandparents. (Your great-great-grandparents are only your grandparents’ grandparents! But who can even say their names, let alone speak about their lives? Will the grandchildren of our grandchildren say the same of us? Don’t even go there—some questions are best left unanswered!) So now consider how things must have been in Egypt as generation followed generation without leaving a trace behind of any sort other than the building projects on which they worked. But even that work went unacknowledged and unmemorialized, somewhat in the same way that the great skyscrapers of New York nowhere record the names of the people who actually built them.

My point is that 430 years is a long time. And, on top of that, the Israelites living in Egypt lived there without any of the things we ourselves have come to rely upon as memory aids in terms of keeping our family legacies intact. They had no photographs, obviously, no home movies. We know nothing of their lives in Egypt, in fact, not even their names. The beginning of their story, we know a little. The first decades must have gone well. Indeed, Joseph was forty-four years of age when the famine that brought his people to Egypt finally ended. Yet when he died sixty-six years later at age 110, they were still there, apparently having forgotten entirely about going home when the famine ended that had brought them there in the first place. And then there eventually came to power a Pharaoh who “knew not Joseph,” and that must have been some time after that, long enough later for the memory of a personality like Joseph to have faded from the national recollective consciousness sufficiently for the new king to know nothing of his legacy or of the offer of friendship that his predecessor had made to Joseph’s father and family. So even the figure of 430 years, which references the years of Israelite slavery in Egypt, does not reveal the full story because there must have been almost a century that preceded that during which the Israelites were in Egypt as welcomed guests and not as slaves. So let’s say, roughly, that this is actually a story covering five hundred years of which the Torah tells the story of the final one only.

Things must have been going on just as always when, out of the blue, things changed. Scripture says that God took note of the Israelites’ suffering, that God “heard” their groaning and moaning. But would that specific generation of slaves necessarily have suffered more than the previous ones? And even if it were so that the misery inflicted upon the Israelites was that much worse in Moses’s generation than in earlier times, would it have seemed that way to the Israelite slaves themselves in Moses’s day? I don’t see why it would have. Indeed, how could they have known how much worse or better they had it than their ancestors from a century or so earlier? My guess is that they would have had no way at all to know that and that redemption must have seemed to them, other than perhaps in retrospect, unearned and inexplicable, an example of divine beneficence not only unanticipated but unanticipatable.

After the fact, most historical events develop a feel of unavoidability to them. But that is truly only how things seem in retrospect and to the Israelite slaves in Egypt, the notion that freedom was nigh, that the hour of their long-awaited redemption was upon them…it must have seemed like the most unimaginable of miracles. Later on, the stories they recorded spoke of the various signs and wonders that God brought against the Egyptians as acts of judgment. But surely the redemption itself, after so many generations of nameless, faceless Israelites lived and died as slaves, was the greatest miracle, the greatest example of God’s presence in history.
That’s how we tell the story. But it behooves us also to pause and remember all those who never made it out, who lived and died in captivity, whose hopes for freedom never came to fruition. It is, after all, on their backs that the story unfolds, on the backs of the uncountable millions who lived and died so that those who had the good fortune to live at precisely the right moment to experience redemption might go free.

As we approach Pesach, I invite you to consider the endless generations of Jews who didn’t make it out alive, who lived and died without breathing free, without experiencing even a day’s respite from their misery. It is on their back that the story unfolds! And so, when the Haggadah invites us to consider ourselves as though we were slaves in Egypt—and the temptation is mighty to consider ourselves as the slaves for whom the sea parted, for whom the manna fell, for whom the presence of God became manifest atop Sinai—I propose we pause also to think of ourselves as the people in the back story, the ones who lived and died so that the other people, the heroes of the Haggadah, could experience the signs and wonders that led to their freedom.

It is in the nature of backstories not to be so interesting. That’s why we call them backstories, because they serve to highlight not themselves but precisely the people in the foreground. But they are there, and their ghosts are hiding between the pages of the Haggadah just as surely as are those of their more illustrious descendants, the generation that fled slavery and became a free people. They are all our ancestors…and this Pesach I think it would behoove us all to spend at least a moment recalling their unhappy fate. The Haggadah, it is true, calls upon us to think of ourselves as if we personally left Egypt. My suggestion is simply that we also think of those who didn’t leave, who couldn’t leave, who simply entered and left the stage of history so that their descendants could become our ancestors, the ancestors of a free people traveling the path from history to destiny, from Kadesh to Nirtzah, from redemption-past to redemption-future.