The Pursuit of Justice

There are, it seems to me, two overarching reasons that society undertakes to punish criminals. One, surely, is to make society safe both by preventing wrongdoers from reoffending (incarceration works well in this regard, at least temporarily, as does more permanently execution) and also by deterring others from following in their footsteps by making the consequences  of illegal behavior horrific enough to outweigh whatever benefits criminal behavior might occasionally bring along in its wake. But the other is less goal-oriented and has more to do with the concept of retribution: to most citizens, it simply feels just and right to respond to bad behavior by making those who willfully engage in it suffer the consequences of their own actions. 

In the ideal situation, these two concepts work together to create a sense of justice accomplished. Someone commits an awful crime, a murder. That individual is then arrested, indicted, tried, convicted, and sentenced to life in prison without the possibility of parole.  Unless he managed to kill somebody in prison (which I believe is far more difficult in real life than on television, although clearly not impossible), that specific person will commit no more murders. Others who may be contemplating murdering someone will, at least theoretically, be prompted to rethink their plans once they hear that someone convicted of murder has been sent to prison for life with no chance ever of being released.  And, finally, the citizenry, upon hearing that someone who willfully and in a premeditated manner took another’s life will henceforth have no control of any sort over his or her own future life, will feel that justice has been done. If the murderer in question lives in a jurisdiction with the death penalty, then the equation is even simpler:  one who took the life of another will now pay with his or her own, just as the simple meaning of Scripture suggests ought be the case: ha-shofeikh dam ha-adam ba-adam damo yishafeikh. One who spills the blood of a human being, by human beings shall such a one’s blood be spilt.  That was neatly put. But is it really that simple? Even the Torah itself moves on to offer complex legislation designed to modify the original idea and protect, to give one example, the inadvertent manslayer.

The prosecution of Dzhokhar Tsanaev, the surviving Boston bomber, provides an excellent example of how these ideas can work together well. If he is convicted in federal court, he will either be executed or sentenced to a very long prison sentence. And all of the requirements for the reasonableness of punishment will be in place. His sentence at least may deter others from embarking on the same kind of terror mission upon which the defendant and his brother witlessly embarked. It will certainly prevent the defendant himself from reoffending. And it feels just and right for the person convicted of the senseless murder of three and the maiming of hundreds to be forced to accept a punishment commensurate with his crimes, whatever it turns out to be.  It seems to me that this latter point serves as the key concept for most of us. When President Obama, on the day of the bombing, declared that it was only a matter of time before those responsible for the bombing feel the “full weight of justice,” he was in effect saying that same thing exactly: although the point of catching the criminals is surely also to deter others and prevent re-offense, the primary reason for capturing the wrongdoer or wrongdoers is to bring them to justice and make them pay for their crimes.

But how should society respond when only one of these avenues of justification is operative, when only one makes sense? That, I realize, is by far the more interesting question to ponder. (I’ve just lately been reading a book, The Urgings of Conscience: A Theory of Punishment, by University of Arkansas professor of philosophy Jacob Adler and I’ve been prompted by what I’ve read to reconsider these issues in light of his very cogent, compelling arguments. The book, which is very clever and interesting, was published twenty years ago by the Temple University Press in Philadelphia and is still available.)

A good example of how complicated it is to decide where fairness and justice lie when the “other” justifications for punishment—inhibiting criminals from re-offending and discouraging would-be criminals from following in their footsteps—are absent could derive from the announcement last week by the Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen (known in German-government-prepared English-language documents as Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes) that it has prepared a list of fifty still-living individuals, men and women, who served as guards at Auschwitz and that it intends to pursue their prosecution if such a path forward proves feasible and legally viable. The history of the organization is interesting. At first, it fell to the Allied authorities to prosecute war criminals. (The trials at Nuremberg in 1945 and 1946 were the most famous, but there were many others.  In the end, the total number of Nazi criminals convicted of war crimes under British, French, and American jurisdiction between the end of the war and 1949 was 5,025, a mere 806 of whom were sentenced to death.  Of those, however, an even more negligible 486 were actually executed, the rest successfully having had their death sentences commuted to prison sentences of various lengths. It is not known how many Nazis were executed or imprisoned by Soviet authorities after the war, but the number is presumed to be in the tens of thousands.) After 1949, however, the responsibility to prosecute Nazis guilty of war crimes fell to the German government itself. However, the German justice system as it then existed was only legally capable of acting with respect to war crimes committed in Germany itself. And so it was specifically to create a government agency possessed of the right to prosecute Nazi criminals whose crimes were committed outside of Germany that the Zentrale Stelle was created in 1958. To date, the agency—sometimes popularly called the Z Commission—has prosecuted some 7000 former Nazis. Generally speaking, the formerly occupied countries of Europe have prosecuted their own collaborators and war criminals.

The next step, the Z Commission announced, will be to discover if any of the people on the list was tried for his or her crimes either by the Allies after the war or by the German government itself.  (Why this was not done before the announcement was made was not made explicit. I personally would have wanted to know that before going public.) More to the point is that this is not an old list that prosecutors have decided now for their own reasons to resurrect; the press release specified that on the list are some names that were only added in the last year as a result of ongoing investigatory research.  There could, therefore, be individuals on the list who have never been publicly identified (much less brought to justice), who have never answered for the willing role they played in the murder not of thousands or hundreds of thousands, but of millions.

These are, naturally, very old people.  Auschwitz was liberated by the Red Army on January 27, 1945, more than sixty-eight years ago.  Assuming the guards were all at least in their twenties, that would make the youngest of them eighty-eight. Some were surely older. Is there any point, really, in prosecuting nonagenarians for crimes they committed well over half a century ago? They are surely not going to reoffend now. Their prosecution, especially if it is successful, will not deter others from serving in the S.S. or from volunteering to serve in the Nazi war against the Jews.  The only reason to proceed, therefore, is the pure pursuit of justice itself. And that, interestingly enough, is where the debate begins.

Some have suggested that a more reasonable approach to the handful of elderly surviving perpetrators would be to create public forums in which these few remaining mass murderers could finally speak openly and freely about what they did, what they saw, what they felt as they participated in genocide. In court, the argument goes, they will say as little as possible and nothing at all personal. But the point of these forums would not be to convict, then punish, the perpetrators, but to allow their candor to lead Germans into a future energized by the resolve never again to allow fascism to take root in their country. Allowing these few remaining war criminals to speak freely and without the fear of punishment, the proposal suggests, could lead to a kind of national reconciliation, something in the way that the Truth and Reconciliation Commission in South Africa sought to bring former enemies together to create a new South Africa.

In South Africa, the concept worked well. Other similar commissions in the world, for example the National Commission for Forced Disappearances in Argentina, have worked less well. In the end, the key to success in such an undertaking is the ground-level assumption, shared by all, that reconciliation, although difficult and painful, is possible. In South Africa, for example, the commission brought oppressed and oppressor together in a cathartic effort to exorcise the past of its demons and thus to create a demon-free path forward into the future. That, I believe, was a reasonable, even a noble, undertaking. But in the context of Auschwitz we are talking about something else entirely: the proposed reconciliation will not be between the murderers and the murdered, but between a nation having trouble “reconciling” itself to its own crimes and the ghosts of its fascist past. I can see why Germans would long for that kind of cathartic depuration of national guilt. Who wouldn’t? But that kind of expurgation can only come, as our own Torah teaches, from some combination of repentance, prayer, and charity…and not from a commission that specifically exists to circumvent the justice system.

The Torah verse that does seem relevant to me is the famous injunction tzedek tzedek tirdof, usually translated as “Justice, justice shall you pursue.”  The repetition of the word for justice has puzzled generations of scholars and commentators. To me personally, the verse suggests that true justice is always possessed of a dual aspect and invariably provides justice for the victim, who seeks and attains a just response to a crime committed against him or her, as well as justice for the accused, who is to be presumed innocent until found guilty by a jury of his or her peers. To sidestep that entire process merely because a murderer has successfully avoided prosecution for decades is to deny justice to the dead, who in my opinion even posthumously retain their right to see their murderers brought to justice.  Therefore, I applaud the decision of the Zentralle Stelle to pursue those who had a hand in the murder of millions even after all these many years have passed. The dead are still dead. So why should their murderers not still be answerable for their crimes?

The Wall

For outsiders looking in, it must be difficult to imagine why the latest attempt to resolve the whole brouhaha regarding women’s rights at the Kotel matters so much to so many people or, for that matter, why the issue itself is important in the first place.  I can see that easily when I attempt to imagine what readers, say, of the New York Times, must see when they read the recent series of articles and updates regarding Natan Sharansky’s efforts, so far not unsuccessful, to broker a deal between the opposing parties in the conflict:  Jews arguing about who stands where on a shadeless plaza in front of an old wall that was not even part of the ancient Temple, just a support wall built into the ground to buttress its foundation so that the hill upon which it stood would not collapse under its unimaginable weight.  When viewed from that vantage point, it does seem—even to me—to be a peculiar setting for a war. And a war—albeit of the cultural variety rather than the military one—has been exactly what has been going on there for a very long time now, one that has included arrests, injuries, insults, violence and the threat of violence, and a level of incivility that is shocking even by the usual standards of in-house Jewish fractiousness.

The short version is that there is no short version. The Western Wall—once called the Wailing Wall because of the emotional laments over our destroyed Temple once sung there by people overcome with emotion and tears—has always been there.  The rights of Jews to gather and worship there were a hugely contentious issue under British rule and eventually became one of the defining issues of the conflict between the Jews of British Palestine and their English overlords. From 1948 through 1967, during the years Jerusalem was divided and the Old City was under the Jordanian occupation, the issue didn’t exist: Israelis couldn’t enter Jordan and there weren’t enough Jews from other countries willing to come as tourists to a country at war with Israel not to be accommodated in that narrow lane. Nor was there anything like an organized rabbinate looking over Jewish affairs in Jordanian Jerusalem. And then Jerusalem was united by the IDF in 1967 and the issue, dormant for decades, came quickly back to life.

The plaza in front of the Wall was added after the Six Day War to accommodate the huge number of visitors and worshipers who could not squeeze into the narrow lane that previously had been adjacent to the Wall. Other than when the Old City was under Jordanian rule, there had always been worshipers there. But the Wall was some sort of combination of shrine and tourist site, nothing at all like a “regular” synagogue where people gather for organized, scheduled worship services. Indeed, all the many photographs of the space from the first half of the twentieth century show men and women worshiping together, side by side, in a way that most of them would have found uncomfortable and unfamiliar in any other setting.  After the Six Day War, the situation changed dramatically. The Wall—the sole remaining vestige of the Temple, although as explained above not strictly speaking part of it—became a symbol of Jewish Jerusalem and of Israel’s intention never again to lose control over the ancient part of its capital city. The space before the Wall—about 1,300 square feet before 1967—grew incrementally until it reached its current size of about 26,000 square feet. All of these developments were salutary, but somewhere along the way the sense that the Wall should be a national symbol of unity and resolve was replaced with the feeling that what the Wall “really” is, is a synagogue. And an Orthodox one at that.

It’s easy to see how that came to pass. The Chief Rabbinate, always in the hands of the Orthodox, had become a bastion of extreme right-wing types whose views regularly shock even Israelis who nominally self-identify as Orthodox. The sense that the Wall should therefore be governed by the same rules that govern worship in Orthodox synagogues—and particular in the kind of synagogues in which the people now in charge prefer to worship—gained traction. Most Israelis didn’t seem to care one way or the other. The issue was resolved by not being resolved.  But then came along the Women of the Wall.

That’s not entirely correct. There were many people—Jews outside Israel and Israelis alike—who found the situation unpalatable. But it was the Women of the Wall who brought the matter finally to a head.

Founded in 1988, the organization is only twenty-five years old.  But it has been in the forefront of the fight to make of the Kotel a place of worship, as the prophet said, for all people…including women who want to lead themselves in prayer.  It’s been a long struggle. In 2002, the Supreme Court of Israel ruled that the Women of the Wall had a legal right to conduct prayer service at the Wall. A few days later, extremist parties in the Knesset introduced a bill making it a criminal offense for women to worship at the Wall in what the bill referenced as “non-traditional ways.” The bill did not pass, but then, in the spring of 2003, the Supreme Court, reconsidering its earlier decision, determined that the government’s earlier ban on women reading Torah at the Wall or worshiping there under their own auspices was indeed legal because doing so would constitute a “threat to public safety.”  The Court did, however, instruct the government to create a space for non-Orthodox prayer in the vicinity, and specifically at Robinson’s Arch, an archeological site adjacent to the Wall plaza. (Named after British archeologist Edward Robinson who discovered its remains in 1838, Robinson’s Arch was once a huge footbridge built by King Herod at the extreme southwestern corner of the Temple Mount. The Arch itself was destroyed during the Revolt of 70 CE when the entire Temple complex was demolished, but the site remains and some remnants of the stonework are still visible.)  This actually happened, and the site—the scene of countless Masorti/Conservative bar- and bat-mitzvahs that some readers may have attended—was inaugurated in 2004.

But, as all Americans knows, separate is never really equal. And there have been persistent efforts to worship at the Wall itself, at the actual Kotel Plaza. In 2009, Women of the Wall member Nofrat Frankel was arrested for wearing a tallit at the Kotel. (I wrote about that incident to you then, which letter those of you reading electronically can access by clicking here.)  In the summer of 2010, Anat Hoffman, the group’s leader, was arrested and charged with the bizarre crime of holding a Torah scroll, then fined 5000 shekels.  Last October, Hoffman was arrested again, this time charged with singing too loudly and, in so doing, disturbing the peace.  This February, more women, including two American rabbis, were detained by police for having conducted an illegal prayer service at the Wall.

Really, you couldn’t make this stuff up. In a world that seems ever less devoted to spiritual enterprise, women are being prosecuted for wishing to devote time to public prayer. In a world that accepts pluralism as one of the foundation stones of democracy, we seem unable simply to agree to disagree.  And in a world that understands gender-equity to be a norm from which society should only deviate when the deviation under consideration can be justified rationally and reasonably, we seem unwilling simply to allow women simply to pursue their spiritual journey unmolested by men who see things otherwise.

Or rather that was how things were until just recently. Last December, Prime Minister Netanyahu asked Natan Sharansky, head of the Jewish Agency, to find a just solution, one that all concerned parties could live with. It can’t have been easy. And what he has proposed is guaranteed not to satisfy everybody. Still, it sounds reasonable to me.  The Robinson’s Arch area is going to be expanded until it is roughly the same size as the Kotel plaza itself. Prayer services, which are currently only allowed at certain times of day and after an entry fee is paid, will be ongoing and free.  The access corridors leading to the larger site will also be redone so that visitors can find their way easily to both areas. And governance of the new area will specifically not be placed in the hands of the Western Wall Heritage Foundation that currently oversees activities at the Wall.

It’s still separate, but it’s more equal. It’s not perfect, therefore. But it is a sign that Israel is moving in the right direction towards recognizing the legitimacy of different schools of Jewish thought and practice, or, more exactly, towards realizing that the government has no business controlling the spiritual lives of the citizenry in a way that prevents them from living Jewishly as they wish. Rabbi Shmuel Rabinowitz, the rabbi who oversees the Kotel, has indicated that he can live with this compromise solution. That’s huge.  (It can’t have been easy, even for a Natan Sharansky, to bring a very traditional rabbi like Rabbi Rabinowitz on board.)  But the bottom line is that he says he can live with it. I myself also can live with it. And I think that the women of the Jewish world, so long marginalized and their spiritual aspirations denigrated, should learn to live with it too. As I said, it isn’t ideal. But it’s a huge step forward. And huge steps forward are good things for people who want to set forth on long journeys to take.

As many of my readers know, the Temple—both in its historical guise as an actual building complex and in its ghostly guise as the epicenter of God’s enduring presence on earth outside of historical time—is at the shrine at which I personally worship daily. When I face Jerusalem to say my prayers, it is towards a Temple that exists outside of both space and time that I turn to face a God who also exists without reference to time past or forward, or to physical space. I haven’t ever passed up an opportunity to worship at the Kotel, nor will I. But I think I can live with davening at Robinson’s Arch, especially in its future, expanded version. It wasn’t part of the Temple. But, then again, neither was the Western Wall. Not really!

The Silver Platter

Next week, Israel will celebrate the sixty-fifth anniversary of its independence. For most Jewish citizens here, the date comes and goes without much fanfare. Of course, the same could be said for the Fourth of July, which in our country has become more a day for shopping and barbecuing than for recalling the specific eighteenth-century events that led to American independence. Of course, there are no living Americans who participated in the Revolutionary War, nor are there any among us who could possibly have known such people. (Even my grandmother, born a mere 102 years after Yorktown, could hardly have met a veteran of the Revolution, although her parents just barely could have!) But in Israel there are many veterans of the War of Independence still among the living and, as a result, Israeli Independence Day is taken much more seriously in Israel than American Independence Day is here.

To create what Israelis consider just the right atmosphere for their national holiday, Independence Day is preceded by Memorial Day, a day of national mourning. But by juxtaposing the two days—one of intense grief and one of great national pride—and by allowing one naturally to flow into the other, the Israelis are also saying something profound about the way they understand the very existence of their state: that it was not handed to them by kismet, much less by the United Nations, but was purchased, so to speak, with the blood of all those who gave their lives so that the state could be born. Among Israelis, the most profound literary expression of that thought—or at least the mostly widely known—is Natan Alterman’s poem Magash Ha-kesef (“The Silver Platter”), which generations of Israelis have learned to recite by heart and which I myself also committed to memory as a university student trying to complete a major in modern Hebrew in a single year before graduating. (When I returned from my junior year in France—during which I had abandoned all my courses except the ones in Hebrew language and literature—and had one year of college left, my goal was to become proficient enough in modern Hebrew to avoid having to take any language courses while in rabbinical school and part of my self-imposed regimen involved memorizing modern Hebrew poetry. It worked too!)

Alterman was an interesting figure. Born in Warsaw in 1910, he moved with his family to Israel when he was fifteen, but—in this one way like myself—spent years in France studying at the very same university I did. (Peculiarly, I’m the one who studied Hebrew. The Hebrew poet himself studied agronomy.) Eventually returning to what was then British Palestine, Alterman worked briefly as a teacher but then turned to journalism and spent the rest of his career writing poetry and working as a journalist and translator. His translations of Shakespeare and Molière into modern Hebrew won him important prizes, but it was his poetry that made him famous. His greatest work, a book called Simhat Aniyim “(The Joy of the Poor”), was written when he was only thirty-one and is considered a true masterpiece of Hebrew letters. But his single best-known poem would have to be Magash Ha-kesef, the poem I learned by heart when I was nineteen. 

The title itself Alterman didn’t make up. That honor goes to Chaim Weizmann, the first president of Israel, who in 1947 after the United Nations had voted to partition the British Mandate and from it to create two independent states, one Jewish and one Arab, remarked famously that "No state is ever handed on a silver platter…The Partition Plan does not give the Jews [a state,] but [only] an opportunity." And it was from that thoughtful, chastening remark that Alterman took the concept that he spun out into his poem, which itself was also written before independence was declared in 1948. The poem is therefore not a reflection on the War of Independence, although it reads that way now, but an almost prophetic prediction of what exactly it was going to take to create a Jewish state in the Land of Israel, and of the level of commitment and dedication, but also the level of loss, that was going to be required to transform the dream of an independent Jewish state into reality.

And so, despite the fact that I am so much more adept at writing prose than poetry, I would like to offer my readers a fresh English translation of Alterman’s poem in honor of the sixty-fifth anniversary of Israel’s independence. Forty years have passed since I set myself to learning these lines. I’ve changed. Israel has changed. Everything, almost, has changed. But the degree to which these lines continue to inspire and move me—that actually hasn’t changed at all.

The Silver Platter
Natan Alterman

As peace comes the land, the red of the skies
Grows slowly less intense over smoke-covered borders
As a nation, still breathing despite its broken heart, rises in its place
To experience something unprecedented, something miraculous.

To prepare for the ceremony, the nation rises up in the moonlight
To stand before the dawn seized by celebration and by terror.
And it is then, at that moment, that a boy and a girl come forward
And slowly take their place before the nation.

Armed, dressed in fatigues, still wearing combat boots,
They come forward along the assigned path in silence,
Having found the time neither to change their outfits nor to wipe
Away the traces of exhaustion earned in the line of fire.

Tired to the point of exhaustion and, indeed, deprived of all rest,
Dripping with dew, or rather with the sweat of Jewish youth,
The two approach and stand perfectly still,
And for a long moment seem neither dead nor fully alive.

In tears but seized by curiosity, the nation asks simply
“Who are you?” The two remain still, considering the question,
But then they do answer. “We are the silver platter,” they explain,
“The one upon which the state has been granted to you.”

And then, having said their piece, they fall back into the shadows
And leave the rest to be recorded in the Annals of Israel.

The Nanny State

I don’t believe I had ever heard the expression “nanny state” until a few months ago, and now I can’t stop finding it on-line and in the press. Referring sarcastically to a society in which a well-intentioned government watches over its citizenry somewhat in the style of an overprotective nanny hovering over the children in her charge and supervising every last one of their steps lest it become a misstep, the phrase is never meant as a compliment. As someone with long-standing libertarian tendencies, thus as someone who specifically does not relish the thought of having the government test the temperature of his bath before being issued a permit to get into the tub, the phrase is resonant with me in any number of different ways. And being told by Mayor Bloomberg how big a soda I may or may not buy when I venture into a 7-11 in one of the five boroughs is really the very least of it.

As a rabbi, I am often expected to be delighted when the government enacts a law or alters a regulation in a way that is unexpected consonant with Jewish law or practice.  The recent decision of the United States Postal Service no longer to deliver mail on Saturday, thus precluding the likelihood of all sorts of Shabbat-prohibited responses to what one might receive in the mail, is a good example of that kind of expectation.  The reality is that I’m pleased the USPS has crossed that particular Rubicon because I think it is a good idea for the USPS not to collapse into insolvency and that single step is predicted to save the service something like two billion dollars annually. But I neither want nor wish for the Postal Service to assist me in promoting Shabbat observance by not delivering the mail on Saturdays because I want Jewish people to embrace the commandments as part of a general willingness to hew to the ordinances that constitute the eternal covenant between God and the Jewish people, not because the government has inadvertently tricked them into not paying their bills on Saturdays after the mail comes.

In other words, I want the government to watch over its own affairs and leave the citizenry free to pursue its destiny according to its own lights even if the decision some specific citizen might make to live a certain way or to undertake a certain kind of activity might seem unworthy or inexplicable—but not dangerous—to others.  Nor does it seem inconsistent to me to believe that one of the key responsibilities of any government is to prevent citizens from infringing upon each other’s rights, but also to believe that living free includes the right to behave idiosyncratically or even at cross purposes with what others perceive as one’s own best interests. When John Stuart Mill wrote a century-and-a-half ago in his essay “On Liberty,” that “the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others,” I think he had it exactly right. It should make no difference, therefore, if some action a mentally healthy, adult citizen is contemplating seems unappealing, outlandish, or immoral to others as long as no one but the citizen him or herself will be affected by it.

You probably are expecting me to follow that thought into the national discussion about gun control in the wake of President Obama’s visits to Connecticut and Colorado this week to press Congress for new legislation aimed at making the public safe from gun violence. I think my readers all know that I have strong (if slightly conflicted) feelings on that issue, but I am actually more interested today in writing about my reaction to the Supreme Court’s two days of deliberation about issues related to the future of same-sex marriage in our country in light of Mill’s remark about the purpose of government.

A lot of what was said could have been scripted in advance, but I personally found myself returning again and again to Mill’s words and concluding, almost to my own surprise, that the issue has a lot more to do with the rights of citizens to live out their lives according to their own lights without undue interference from even the most well-meaning government than anything specifically to do with gay people or the reasonableness of homosexual individuals choosing to share their lives with members of their own gender.  People do not need to be protected from themselves…only from others whose activities will likely impinge on their wellbeing or their civil rights. And that principle applies, or should apply, to all citizens regardless of where they fall out on the sexual orientation spectrum.

When Justice Kagan, for example, asked Charles J. Cooper, one of the lawyers representing opponents of same-sex marriage in California, how exactly, in his mind, the existence of same-sex marriage impacts negatively on the rights of heterosexual couples to marry and flourish, his answer, unconvincing and to my mind more than slightly peculiar, was that permitting same-sex marriages will “refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.” Had anyone asked me that question a few days earlier, I personally would have responded that it has always seemed to me that the point of marriage is specifically to speak to the needs and desires of adult couples.  Justice Kagan’s response suggested to me that she would have answered similarly. So did Justice Breyer’s. I think, in fact, that it would come as a huge surprise to most Americans to learn that the point of marriage is to get people to procreate and that the establishment of dignified homes characterized by maturity, monogamy, commitment, and trust is merely a happy side-effect, one no doubt beneficial to the public weal but ultimately ancillary to the “real” point of getting married. And, just to play the devil’s advocate, who says that gay couples cannot produce or parent children? This is, after all, the twenty-first century!

The government could, of course, solve its problem simply by withdrawing from the debate and declaring marriage a religious issue for religious groups to figure out for themselves and on their own. And if marriage conveyed no specific benefit to married couples other than the pleasure of marriage itself, then that would be an entirely reasonable development. For millennia, in fact, that is exactly how the world viewed marriage: as a religious institution with which the government had nothing formal to do at all.  In Great Britain, for example, the Marriage Act of 1753, popularly called Lord Hardwicke’s Marriage Act, for the first time required couples who wished to be recognized by the state as married to have formal wedding ceremonies, but the ceremonies in question were, by law, to be conducted in an Anglican church or under the religious auspices of Quaker or Jewish clergy. (Everybody else was apparently out of luck.) It was only at the very end of the eighteenth century, in fact, that Napoleon brought the concept of civil marriage to France, then subsequently to the rest of Europe. In our country, civil marriage has always been an option—but that is, I believe, specifically because marriage in our country brings along with it certain advantages that the constitutional separation of church and state makes it impossible for the government to extend only to couples who are prepared to marry in religious ceremonies.  I think that makes sense—if the civil government is offering a civil benefit to the citizenry, it can hardly make that benefit dependent on that couples willingness to affiliate religiously!  And with that thought we come to the crux of the matter as it now seems to me: the government needs not to interfere in the lives of citizens who wish to live together and enjoy the benefits of marriage merely because their choice of spouse is uncharacteristic of the majority. The only justification for doing so, as Mills wrote in his day and as Justice Kagan suggested last week in her remarks, would be the argument that permitting such unions infringes in some important and undesirable way on the civil rights of other citizens. If that were the case, then not permitting them would make sense. But even the lawyer arguing before the court against same-sex marriages in California could not come up with a cogent argument in that direction.

My own thinking on this issue has evolved dramatically over the years. Once, and not at all so long ago, I would have considered the whole concept of same-sex marriage to be unimaginable. So would have most Americans. Indeed, the number of citizens in favor of the government offering the option of marriage to same-sex couples almost doubled from 1996 to 2012 and will, I think, only grow as the years pass given that support for the principle (in some guise or another) is at 58% of American adults, but at 81% if only citizens between the ages of 18 and 29 are included in the poll. What surprises me, though, is how the issue has morphed in my mind from one essentially “about” gay people into something far more about the government’s obligation to leave the citizenry be when the possibility of harm to others is non-existent and to refrain from distinguishing between recognizable groups within society when there is no obvious gain to society in doing so. Not giving gay people wedding licenses is not like not giving blind people driver’s licenses!

As a rabbi, I have all sorts of strong feelings about the way Jewish people should live their lives in accordance with divine law. (I have, after all, devoted almost my entire professional life to encouraging adherence to the terms of the covenant that binds the God of Israel with the men and women of the House of Israel.) What has changed for me, therefore, has nothing to do with the specific way I hope Jewish people of every stripe, certainly including gay people, retain their sense of fidelity to the commandments and conduct themselves accordingly. What has changed, on the other hand, is my understanding of the issue before the court as a specifically civil matter and my sense that the government should leave people free to pursue their own destinies without discriminating pointlessly between groups of citizens…unless they can prove categorically that there’s method in their madness.  That was the challenge laid down in the court last week. And it was, in my opinion, a challenge left unmet.