How Much Power to the People?

I have returned many times in these letters to the question of democracy and how it should or could operate in the context of our American republic and its commitment to the free exchange of ideas, freedom of religion, and (particularly) freedom of speech. Those values are simple to embrace in theory, after all—what would be the alternative anyway, being opposed to freedom of speech?—and neither is it especially daring to opine, as I also often have, that freedom of speech is meaningless if it doesn’t extend to unpopular, including extremely unpopular, speech as well. The last time I wrote about this topic was when the controversy about the Met’s production of The Death of Klinghoffer was raging. And it was in that context that I wrote, meaning it wholeheartedly, that the issue to be debated was not whether the librettist had the right to express her opinions in a public document or even if the Metropolitan Opera has the right to mount whatever productions it wishes on its own stage…but whether mounting that specific opera at that specific time was the right thing for them to do, the just and moral thing…as opposed to something merely permissible by law. Clearly, producing The Death of Klinghoffer was the Met’s legal right. But I felt then and feel now that the opera was insulting to the memory of a Jewish martyr who died al kiddush ha-sheim and that that, in and of itself, made its production morally repugnant to me personally. But I did not go so far as to argue that the Met should have somehow been banned from producing The Death of Klinghoffer. Nor do I believe that the laws that prohibit defamation or calumny should be interpreted so broadly as effectively to prohibit citizens from speaking harshly, critically, or even insultingly about each other. Lying in public about someone and publicizing untruths in that person’s regard should be prohibited, not interpreting others’ words or actions in whatever light someone chooses, including harsh, angry, unforgiving light.

And that brings me to the bizarre case of one Matthew G. McLaughlin, a California lawyer who is attempting to gather the requisite 365,880 signatures necessary to place a home-grown initiative on the state ballot for the consideration of its citizens, whose approval would effectively make the proposition into law in California.  The notion that the citizenry should play an active part in its own governance will sound rational enough to most Americans and, indeed, many who live in states other than California are envious of the freedom Californians have to bypass the legislature entirely and, in effect, to enact laws on their own without the involvement of their elected officials at all. It sounds appealing to me too! But how different all that fine rhetoric sounds when considered in light of the details of the McLaughlin initiative: it is his proposal not only that same-sex sexual relations be made illegal, but also that the law mandate the execution by firing squad of parties found to have engaged in such relations. (Just to make the proposal more bizarre, the proposition defines same-sex relations as instances in which an individual merely “touches a person of the same gender for purposes of sexual gratification.”)  By comparison, the distribution of “sodomistic propaganda” to underage individuals would be punished merely by a one million dollar fine, ten years’ imprisonment, or—less bad, or at least less consequential, than the alternatives—deportation from California for the rest of the offender’s life.  Are you still feeling that citizens should be free to propose whatever laws they wish and, supposing they get enough support (the precise figure in California is 5% of the number of people who voted in the previous gubernatorial election), place them on the ballot for the approval or disapproval of the citizenry? It sounds so reasonable and so democratic—and so totally in sync with the values for which our republic stands—when considered in a vacuum, and yet so grotesque when considered in light of the actual kind of laws people are capable seriously of proposing for the consideration of the public.

To label the McLaughlin initiative as morally monstrous is almost to say nothing at all. Nor is there even the slightest chance of 365,000+ Californians signing onto the initiative, let alone of it becoming law. Nor is there any real question that such a law would not be thrown out by the courts instantly even if it did somehow garner enough votes to pass. So the gay citizens of California have nothing to worry about and nothing to fear….but that is not the question I’d like to discuss, which is far more complicated than whether or not McLaughlin’s barbaric initiative is a good or a bad idea. The question I’d like to ask is about drawing the line between granting the citizenry the right to self-rule and refusing to allow bigoted, hate-filled propositions even to be set before the electorate for their consideration. Where exactly is the line between protection and paternalism, between allowing for the free expression of ideas and allowing the free expression of ideas unless they’re revolting and repulsive? 

Does the fact that our courts are charged with overriding, thus voiding, legislation that violates the Constitutional rights of the citizenry have as its natural corollary the notion that any citizen should be permitted to put forward any proposition at all for his or her co-citizens’ consideration? In other words, should we muzzle those in our midst who hold unpopular, including grotesquely unpopular views, merely because the views they espouse are repugnant to most, or should we permit the public promulgation of any idea at all precisely because the courts are charged with prohibiting legislation that violates citizens’ civil rights? The notion that freedom of speech must extend to unpopular speech is a cornerstone of American culture. But should that freedom extend to the possibility of proposing laws…or does that come too perilously close to the possibility of a prejudiced, angry majority materially altering the basics of American legal culture merely because it can? If you’re not sure where you stand and you don’t mind feeling even more uncomfortable, imagine that the proposition in question outlawed circumcision or kosher slaughter and made engagement in either act punishable by death. Would you still be that willing to consider freedom of speech utterly sacrosanct? Or would placing limits of the kind of legislation that citizens can sponsor suddenly seem rational and reasonable?

The foundation stone upon which American society rests is the freedom of the individual. Looking at the free elections of 1933 in which 43% of German voters voted the Nazis into power makes us all shudder—how much simpler it would be to condemn those elections if they had been crooked! And yet none of us thinks that the fact that the Nazis won somehow legitimized the reign of terror that ensued, leading eventually to war and the deaths of scores of millions. Was the Second World War then the fault of the courts? Or was it the fault of the electorate for choosing to be governed by madmen? Or was it merely the fault of the perpetrators themselves and not those who voted them into office? Surely, the cause of justice would have been served by a powerful, independent judiciary striking down law after law that the Nazis managed to have voted into law in the Reichstag. But that, of course, didn’t happen, nor could it have happened once the judicial system itself became corrupt and debased. Does the fact that we in our nation have a fiercely independent judiciary mean that our citizens should be permitted to propose whatever they wish because our courts will surely annul all unjust laws? Or does history teach us all too clearly not to count on the courts—which in our nation do not come with their own militia to protect them and safeguard their integrity—and not to permit the citizenry even to consider laws that are rooted in irrational hatred, prejudice, bigotry, or intolerance?  That is the question the McLaughlin initiative throws down before us for our consideration.

Our Torah can be read to propose a different model for civil governance, one rooted in obedience to God and in the sense that no human initiative can be considered legitimate unless it derives directly from divine law. Indeed, our enormous library of legal books and texts are all framed as efforts to translate the values of Scripture into the warp and woof of daily life as real people actually live it. In a secular society, that thought works as well, albeit with the Constitution instead of the Torah as the foundational document upon which the republic rests. But that, in the end, should be the determinant. In my opinion, no proposition should be placed before the electorate for consideration that, if enacted, would by its nature violate the rights of citizens. To find virtue in allowing such laws first to be passed and only then struck down or not struck down by the courts is to place too much power in the hands of people interested primarily in pursuing their own personal agendas. To sneer at the McLaughlin proposition because it is so patently and obviously wrongheaded and morally repugnant…but then to throw up our hands and feel that we are somehow betraying our national ideals by not permitting the populace to vote on it…that, I believe, is a kind of abdication of moral obligation on the part of the government. Kamala D. Harris, the attorney general of California, should simply refuse to put the proposition on the ballot and dare its sponsors to sue her in a court of law if they feel their rights unduly trampled upon by her decision.

Jewishness and Judaism

And so, yet again, a nice couple was sitting in my office the other week. They were young and attractive-looking, mid-twenties, well-groomed...but also nervous and slightly ill at ease. Trust me, I know the look. And I also know not to press them, just to let them get to the point on their own. And eventually they do get there. They’re in love. They’ve lived together for months, sometimes years. They want to get married. But one of them isn’t Jewish and that, they claim only recently to have learned, is going to be a problem if they wish to get married at Shelter Rock (or any Conservative or Orthodox synagogue). That part, of course, isn’t true: they’ve known it all along (or the Jewish party certainly has), just haven’t overly focused on it or wanted particularly to deal with it. But the time has come and I have finally taken my modest place, yet again, on a happy couple’s checklist: hire band, find florist, buy wedding dress, talk to rabbi, send out “save-the-date,” make up guest list, etc. Sometimes      I’m closer to the top, sometimes not.

And then, having finally arrived at the actual point of our meeting, we start to talk more seriously about what’s involved. First, the easy stuff. If the non-Jew in the room is the future groom, I find some delicate way to inquire about circumcision. I mention the mikveh, also in as disarming a way as possible. And then we get down to addressing the elephant in the room, the issue that all concerned, myself most definitely included, would prefer ignoring altogether: that there is no such thing as converting to Jewishness, only to Judaism…and that, I explain kindly but also clearly, that is going to involve taking on a regimen of religious ritual and practice that, even liberally construed, will require making some rather dramatic changes in life as almost certainly lived to date.

I know that’s not what they want to hear. The Jewish partner is almost invariably not strictly observant, which detail is often revealed as though its revelator expects it to surprise me. He or she has no problem with being Jewish, he or she assures me. And I know that even before I hear it: the very fact that the couple has come to see me in the first place is itself ample testimony to the fact that the Jewish party in the relationship feels warmly and strongly about his or her Jewishness. And with that we come to the crux of the matter: the couple has come to me so that I can convert the non-Jew in the room to Jewishness, to membership in the House of Israel, to a sense of cultural and emotional attachment to the Jewish people…but not necessarily to Judaism and all that that entails.  He wants her (or vice versa) to laugh at Jewish jokes, to know the difference between kreplach and kneidlach, to feel comfortable in Jewish settings and among Jewish people… not actually to insist on going to shul on Shabbat and keeping a kosher home, let alone meticulously and with attention to all those innumerable details! That’s not always how it is, of course. There are those who seriously do wish to make Judaism into their spiritual path forward, into the context for future spiritual growth…and who are willing to do what it takes to sign on. But more often than not we come to an impasse that no one in the room is entirely sure how to negotiate.

With such couples, the sticking point is that they want Jewishness not Judaism, ethnicity not religion, culture not halakhah. Every rabbi in every pulpit has met these people…and we are specifically not talking about people to whom none of this Jewish stuff matters at all. Just to the contrary, we are talking about people who have gone so far as to consult with a rabbi to see about solving what they perceive as an impediment to the wedding (and possibly even the marriage) they want. I do my best to explain, I hope kindly, that there simply is no such thing as converting to Jewishness, that I can help them if they’d like...but probably not in the way they’d prefer. Mostly, they’re semi-amazed I’m not willing to do anything at all so that they can have the Jewish wedding they presume, not entirely incorrectly, I hope that they do end up having. And so we reach a bit of an impasse, me wanting to help and not knowing exactly how to proceed and they wanting me to work my magic to make their problem vanish but not really being fully prepared to tote their half of the barge.

In other contexts, it goes without saying that ethnicity is a closed shop: there simply is no way in our American culture to become an Irish-American or an Italian-American. You can marry it. You can learn the cultural trappings that go along with it. You can learn to pass (or you can try)…but in our culture the term “Polish-American” is reserved solely for immigrants from Poland and their descendants, not for people who know how to polka or who like kielbasa but whose ancestors came here from anywhere but Poland. (Perhaps that’s a bad example—two of my own grandparents actually did come here from Poland but I’m still not a Polish-American, at least not in the sense in which the term is normally used.) But whereas ethnicity in our culture is a club you can’t join, that is specifically not the case for religions, which you actually can join. And that’s where the confusion comes in: Jewish-Americans function both as a faith group and as an ethnic group. But only one of the above admits converts…and, at least for some, that constitutes a serious, if unexpected, dilemma.

I’m writing about all this because I’ve just recently read a book by Roberta Kwall, director of the DePaul College of Law Center for Intellectual Property Law and Information Technology and the director of the university’s Center for Jewish Law and Judaic Studies in Chicago, in which she argues that this much ballyhooed distinction between religion and culture is, at least in the Jewish context, a bit of a chimera. Her book, entitled The Myth of the Cultural Jew and published earlier this year by Oxford University Press, argues cogently, in fact, that the notion that there even is such a thing as Jewish culture that exists independently from the Jewish legal heritage—in other words, that Judaism and Jewishness are discrete entities that only occasionally overlap in the lives of some specific Jewish people but which can otherwise exist fully independently of each other—that that notion itself is flawed and essentially inarguable. And then she sets herself to proving her point.

Because the author is a professor of law and not a rabbi, she writes from a vantage point not usual for authors of books about Jewish life. And because she is personally engaged by her material, she writes from the heart and not in the detached manner of legal scholars discussing points of law or legal theory. Moreover, because she is trained academically in law and not in Jewish studies, she has the advantage over many of seeing through her own eyes and then interpreting what she sees in light of her own training, not unlike the way in his day Theodor Reik, a trained psychoanalyst with a Ph.D. in psychology and the sole important disciple of Freud not to have been trained as a physician, was able to write remarkable books about Jewish life bringing his own training to bear and specifically not relying on what Judaic scholars imagined to be obvious or self-evident. (For an excellent example of Reik’s genius, I recommend his essays on Kol Nidre and the shofar that constitute the second half of his book, Ritual: Four Psychoanalytic Studies.)

Professor Kwall’s title summarizes her argument, but I should let the author speak for herself. “Cultural Judaism absent any connection to Jewish law,” she writes, “is an impossibility. Why? The answer lies in the assertion that Jewish law and Jewish culture are forged together in the composition of Jewish tradition.” And then, masterfully, she goes on to explain why she thinks that to be the case. Choosing her examples carefully, she shows that Jewishness itself—the cultural baggage Jews carry wherever they go and with the weight and scope of which they identify fully or, if they remain at all engaged by their Jewishness, at least partially—that Jewishness cannot successfully be analyzed as mere ethnicity without reference to the halakhah, to the law that underlies even the least overtly “religious” aspects of Jewish life.

It’s an intriguing argument, one made all the more appealing by the author’s background in the American legal tradition and her awareness of how interrelated American law and American culture truly are. (I should probably mention that I know the author personally and am thanked in the introduction for having read the manuscript and commented upon it before it was finally published.) Throughout the book, the author demonstrates her conviction that, to quote a recent on-line blog posting she created to bring her book to the attention of a wider readership, “Judaism is not a science but rather a form of art—a cultural product composed of law, wisdom, and narrative, all of which have been shaped by social forces over time and diverse geographic space.” This is not the dispassionate work of a disinterested pedant. Indeed, when Kwall writes that her interest in seeing the book through to completion was ignited by her passion for Judaism, as well as by her desire to transmit that passion to her children, no reader will have any trouble believing her.  It’s a remarkable book, a tour de force all the more remarkable because its author is not a rabbi, not a Judaic scholar in the traditional sense, not a Talmudist at all. She is, however, very insightful, very bright, and full of the wisdom she brings from her own field of scholarly expertise to the domain of Jewish studies. I recommend her book to you all!

A fair number of interfaith couples that come to see me decide to pursue conversion to Judaism and end up getting married under a chuppah. Others, probably most, either end up hiring far more liberal rabbis than myself to perform their weddings without requiring conversion at all or else they give up on the idea of being married under a chuppah entirely.  It’s always a painful moment, at least for me personally, when I realize that I probably won’t be seeing a couple again now that I’ve made it clear what conversion to Judaism entails. But Roberta Kwall’s book made me feel better about our refusal to treat Jewishness and Judaism as divisible quantities…and our concomitant insistence on seeing them as threads living tradition that simply cannot exist independently of each other. That actually is what I think—and my occasional encounters with Judaism absent Jewishness and the inverse, Jewishness absent Judaism, both of which I have experienced personally and uncomfortably, only make me more sure that we are doing the right thing by declining to make conversion to Judaism “about” Jewish foods or Jewish jokes. I like most Jewish foods and I inherited a million Jewish jokes from my father…but neither of those things would mean much without the ritual framework that grants Judaism both its cultural dignity and its ultimate spiritual worth. And that is what I tell the couples who come to see me even if it’s not precisely what they were hoping to hear. And sometimes they even listen!

At the Nergal Gate

Like many of you, I’ve been watching on with some combination of horror and incredulity as ISIS has set itself to destroying the artistic and archeological heritage of Iraq…and I’ve been particularly drawn, also with bewildered disgust, to the actual video released by the iconoclasts themselves (for once to use the term literally to mean “destroyers of images”) so that the world can see their handiwork for itself. (If you are reading this electronically, you can see an edited version with English-language subtitles provided by the New York Times—42 seconds out of an original 300—by clicking here. You can see the full video, but without the subtitles, by clicking here. Both are very worth watching.) 

The video begins with a young bearded man wearing a huge Muslim-style yarmulke explaining that Muhammad himself ordered “us” (by whom he presumably means all devout Muslims) to remove and obliterate statues—I’m quoting here from the English subtitles—and then goes on to note that his prophet’s companions heeded well his command as they captured and conquered various countries in the region. As he speaks, the camera pans some of the Mosul Museum’s treasures. (The Mosul Museum is Iraq’s second largest gallery of ancient art, following only the National Museum of Iraq in Baghdad in terms of the richness of its collection of antiquities.) And then we get down to it. One after another, men climb up to the top of the pedestals on which these ancient treasures are, or rather were, displayed…and push them over onto the ground, where they are smashed to dust. And then, presumably as statues were encountered that were too big merely to topple with the force of a single person’s body weight, we see ISIS zealots using pick-axes, hacksaws, and electric chisels to destroy statues, busts, and other, mostly larger, works of ancient art. Nor do they invariably just let them fall to the ground: in some cases we see them using their sledge hammers to smash the topped statues and truly to pulverize them.  

And then we are suddenly outside the museum at the famed Nergal Gate, once a city gate of old Nineveh, the capital of the Assyrian Empire, where we see zealots smashing the gigantic human-headed eagle-winged bulls, called lamassu, that were intended to symbolize the city’s determination to remain safe and secure from marauding outsiders. Nor was Mosul the only setting for ISIS’s iconoclasm. In Nimrud, in northern Iraq, ISIS militants used bulldozers to destroy one of the nation’s most important archeological sites, the remains of the capital of King Shalmaneser I (d. 1245 BCE).  And many experts imagine that ISIS’s eyes will now turn to Hatra, known to movie-buffs as the setting for the opening scene in The Exorcist but in its own right one of the most culturally significant and well-preserved cities from late antiquity in Iraq.

The world has reacted with predictable outrage. The director of the Metropolitan Museum of Art, Thomas P. Campbell, for example, described ISIS’s activities in Mosul as an act of “catastrophic destruction.”  Other authorities used similarly strong language. A UNESCO official, for example, said that the ISIS “extremists are trying to destroy the entire cultural heritage of the region in an attempt to wipe the slate clean and rewrite history in their own brutal image.” But when I watch these videos—and particularly the longer one, the one without subtitles—I feel myself drawn into the story in two distinct ways, each related to my personal worldview and Jewish faith.

For one thing, these people are not as foreign to us as all that.  In the world out there, who even knows who the Assyrians are?  It is true that there are sects of modern-day Iraqi and Syrian Christians who call themselves Assyrians, but the real Assyrians—the ones whose archeological remains have fallen victim to ISIS’s sledgehammer…what average American even knows when or where they lived? To us, on the other hand, these are familiar names. Whom the world calls Tiglat-Pileser III, Jews (or at least Jews who know their Bible) know almost familiarly just as Pul, the tyrant whom King Menachem of Israel bought off for a mere thousand talents of silver. It was the Assyrian king Shalmaneser IV who besieged the capital of the northern Kingdom of Israel and died during the siege, leaving it to his successor Sargon II fully to defeat Israel and to take the ten tribes of Israel who lived there into captivity, never to be heard from again. And it was Sargon’s son Sennacharib, known in the Bible as Sancheiriv, who laid siege to Jerusalem in the days of King Hezekiah and who would probably have succeeded in conquering and razing the city if…something hadn’t happened. (The Bible says that God sent an angel successfully to take out 185,000 of his soldiers, which naturally cooled his ardor to continue with the campaign considerably. 

Sancheiriv, on the other hand, left a report of the campaign considerably more flattering to himself but with roughly the same ending.) Plus, of course, it was to Nineveh itself that the prophet Jonah was sent…and what Jew doesn’t know that story almost by heart?  So when American newspapers pause at length to explain who these Assyrians were whose art is being demolished in Iraq, we whose lives are shaped by the study of Scripture skip quickly ahead to the meat of the story: we know these people well and hardly need to be introduced to them formally as though they were strangers newly come to the ball.

So the eradication of these monuments is also an attack, at least indirectly, on our history as well. But there’s another aspect to the story that draws me in, one dramatically less simple to negotiate. What these ISIS guys are doing is, after all, also not so foreign to us…for the Torah too commands the Israelites not merely to turn away from the idolatrous rituals of the Canaanite and their gods, but actually to destroy their statuary and all the plastic appurtenances of their faith. Nor is there anything even slightly ambiguous about the many passages that command the faithful to “pulverize their altars, destroy their worship-steles, chop down their worship-trees, and incinerate their idols.” And something along those lines must well have happened, because, indeed, most of the nations whose cultural artifacts Scripture condemns and orders utterly destroyed have indeed left behind…nothing at all.

Yes, it’s true, of course, that the larger context in Scripture justifies the destruction of these idolatrous artifacts with reference to the worry that encountering a thriving, lively cultural milieu without destroying its plastic imagery could lead to the Israelites intermarrying with the Canaanites or, perhaps even worse, to settling into a kind of peaceful co-existence with the very nations from whom God has chosen to take their ancestral lands and grant them to the newly-freed Israelites.  So the parallel is hardly exact: the Bible sees a real possibility of Israel being seduced into the worship of alien deities, but ISIS is acting out of a fundamentalist loathing for all statuary connected with ancient polytheistic civilizations even though there is no conceivable possibility of Iraqi Muslims abandoning their faith and choosing instead to worship the gods of ancient Assyria.

But, even so…there is something challenging in those words from the Torah, words that command that a nation not merely be defeated militarily but that its cultural artifacts be destroyed utterly and, needless to say, permanently. Did our ancestors actually do that? It’s true that there are no actual accounts in Scripture of Israelites pulverizing Canaanite idols with the ancient equivalent of sledge hammers (which, now that I think of it, probably were sledge hammers). But that is thin balm indeed, the thought that it might not have happened. Far more important to consider is the fact that the Torah wants it to happen, wants the cultural heritage of ancient Canaan not to exist at all, not merely not to be embraced.

Whether or not the Torah was presenting an accurate picture of the cultural dangers that faced the Israelites with their entry into Canaan, who can say?  Scripture clearly thinks so! But, regardless of how things were then, more relevant is how things are now. And now, given that the works of sublime artistry that ISIS has destroyed were ponies in a race that has been behind us not for centuries but now for millennia…that surely has to be the relevant point. Nor do moderns understand the legitimate rivalry between religious worldviews as something rationally or reasonable adjudicated through the demolition of the accouterments of one side by the faithful of the other. Indeed, we live in a world in which different faiths seek to attract people to their houses of worship and to their worship services by appealing to them intellectually, spiritually, and emotionally…through the media of the printed word, the broadcast speech, the uploaded video, and the proffered podcast. The notion of seeking to spread the good word about one’s own faith is something moderns have come to think of as a normal feature of a vibrant, diverse religious society.  But the notion of going to war with ancient statues for the sake of eradicating their non-existent pull on the heartstrings of the faithful…that is not proselytism but savagery, not participation in thoughtful, respectful debate but the negation of the notion that that kind of debate between people of different worldviews itself is something worthwhile and potentially productive. 

The destruction of the lamassu of Nineveh, statues that Jonah himself may well have walked past on his way into Nineveh, was unjustifiable barbarism with no rational justification. Speaking of Jonah, by the way, he himself plays an unexpected role in this story as well: ISIS blew up his tomb, or his alleged tomb, in Mosul just last July. (If you haven’t had enough yet, click here to watch the tomb being demolished by a man with a huge sledge hammer.) We live in a world in which the once unimaginable has become commonplace. You would think that someone who has read as much Shoah-based literature would be impervious to tales of brutishness and barbarism. I’d have thought that too. But we’d both have been wrong.