Wedding Cakes

Chanukah is behind us, but the issue of religious freedom that animates the festival remains fixed on our American agenda as something fully embraced but somehow not quite fully defined. That strange duality surfaced just recently in a particularly challenging and interesting way in the Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission case in which regard the Supreme Court heard arguments just the week before last.

The backstory is simple enough to recount. In 2012, Jack Phillips, the owner of the Masterpiece Cakeshop in Lakewood, Colorado, declined to bake a custom wedding cake for a same-sex couple on the grounds that doing so would require him to betray his own religious principles—thus in effect violating his civil rights by denying him the freedom of religion promised to him and to us all by the First Amendment to the Constitution. The couple, David Mullins and Charlie Craig, went to the Colorado Civil Rights Division, arguing that their civil rights had been violated when the baker refused them service and asking that Phillips be ordered to serve them just as he would any other affianced couple who wished to purchase a custom-made wedding cake.  In response to the investigation which then ensued, Phillips informed the Civil Rights Division that he did not refuse to sell them a cake due to their sexual orientation, but rather because he could not create a cake that would celebrate their marriage. The Civil Rights Division stated that Phillips’ response was a difference without a distinction, and that he did not have a free speech right to turn down the couple’s request.  The Colorado Civil Rights Commission, upholding that decision, noted that if Phillips was willing to create cakes for opposite-sex weddings, he had to do so for same-sex couples too. And then, in December 2013, an administrative law judge determined that Phillips had indeed violated the Colorado law that prohibits discrimination based on sexual orientation, in effect ruling that no Coloradan may violate another’s civil rights even if he or she is being motivated to do so by religious principles…and that the sincerity with which those principles may well be held is not consequential in a case like this: citizens of our free land are fully free to believe what they wish and to join whatever church they prefer and to practice whatever faith they wish, but bakers still cannot deny service to a gay couple any more than they could to black people or Jewish people or any recognizable group within society. The matter appeared to be resolved.

Masterpiece Cakeshop appealed the decision, but lost again, in May 2015, when the Colorado Court of Appeals upheld the determination by the administrative law judge, ruling that businesspeople cannot justify otherwise illegal discrimination with reference to even genuinely and earnestly held religious principles. Then, the following April, the Colorado Supreme Court declined to hear an appeal of the lower court’s ruling. The matter again appeared to be resolved.

But nothing is ever that simple. Jumping into the mix, a conservative legal nonprofit, the Alliance Defending Freedom, petitioned the U.S. Supreme Court to hear the case and, just this last June, the court agreed and scheduled oral argument for the first week in December. And that is how we got to this particular place in our nation’s apparently never-ending effort to reconcile the right of individuals to be guided by their religious beliefs and spiritual principles with the right of other individuals not to be discriminated against by people being guided by their religious beliefs and spiritual principles.

One interesting feature of the debate as it has unfolded in the blogosphere and on the op-ed pages of the nation’s newspapers is how simple the issue appears to seem to at least some people on both of its sides. For at least some of the people supporting the baker, there’s hardly a matter worth debating here: what could possibly be less complex than a case featuring an individual who does not wish to be forced to act in a manner contrary to his own religious principles, a right guaranteed by the part of the First Amendment to the Constitution that guarantees religious freedom? But on the other side the matter appears—at least to some—to be a no-brainer as well: what could possibly be more obvious than the right of individuals not to be discriminated against by bigoted individuals who are specifically barred by law from translating their prejudices from malign, but ultimately protected, feelings into actual workplace policies?

Both those approaches are simplistic, because the issue at hand is not really whether we should permit discrimination or curtail freedom (both of which really are constitutional no-brainers), but rather how to imagine a society in which people do not feel obliged by law to abandon their principles and in which no individual or group within society has to deal with prejudice, subtle or overt. No one, after all, is asking the baker to abandon his principles or his opinions, only to create a custom-made cake for customers who do not share them. (In fairness, I should note that Phillips was prepared to sell them a wedding cake, just not to create a custom-made one.) But, of course, his contention is specifically not that his he is somehow being enjoined from practicing his faith, but rather that, by forcing him to sell the gay couple a custom cake, the government is obliging him to behave in a way that suggests acquiescence to beliefs that he does not hold. The issue, therefore, is whether religious freedom does or should involve non-verbal expressions of opinion that are made outside the sphere of religious activity or worship. When put that way, the question becomes very interesting indeed…and not at all simple.  

There are several different issues here to unravel. The first, probably the most important, has to do with the nature of speech itself. The baker is arguing that serving a cake custom-made by him—and thus imbued with his creativity, artistry, and artisanal skill—at a same-sex wedding reception is in effect forcing him to “say” something that he is not comfortable “saying” in public, and that that is true even despite the fact that he has sold the cake to someone else and thus no longer owns it personally. But is that really true? I go to a lot of weddings, but I don’t believe it has ever struck me to imagine that the baker has created the wedding cake as a kind of formal endorsement of the union being celebrated. So to argue that selling a wedding cake to someone is the equivalent of making a public statement regarding the worthiness of the nuptials being celebrated is just not true. No one thinks that! The day of my daughter’s wedding was one of the highpoints of my entire life. I had a fabulous time. We had a lovely cake. I may even have eaten a piece (who can remember?), but where it came from I have no idea. The caterer provided it, but I’m sure she didn’t bake it herself! So she bought it…but from whom, and whether that individual him or herself actually baked it personally, I also have no idea. I’d be amazed to learn that the baker even knew my daughter or son-in-law’s name…or anything at all about them. But what is certain is that there was not a single person at the wedding who imagined that the baker, whoever it was, was attempting to speak to us through the medium of his or her cake, much less formally to endorse Lucy and Shuki’s union. Nor do I have any idea if it was or wasn’t “custom-made” for our wedding. Indeed, I’m not even exactly sure what that means with respect to wedding cakes.

For me personally, the far more interesting question to ponder has to do with the question of whether, or how, non-verbal speech should be protected by law. The issue is only ridiculously applied to people who supply cakes to weddings. (What if we had commissioned a special kind of floral displays for the tables—would the florist also be “speaking” to our guests and to us through his or her floral arrangements?) But what about someone whose work is recognizable and easily attributable, someone like an haute-couture fashion designer. Does such a person have the right to decline to sell a dress to someone of whom he does not approve on spiritual or ethnical grounds for fear that the public, seeing that dress on that person, will conclude that that designer was saying something supportive by selling the dress in question to specific person who purchased it to wear in public? If I know the name of the designer who made the gown Mrs. Kennedy wore to the Inaugural Ball in 1961—which detail amazes even myself—then I’m sure half of America must know who made Mrs. Obama’s dress or Mrs. Trump’s. So those designer’s names really do inhere in their work—should they then have the right to decline to sell their dresses to people they do not wish to be seen wearing them in public?

When put that way the issue seems less simple, but the crucial detail is that it is specifically not forbidden by law for bakers and dressmakers to turn away customers because of political affiliation or the identity of a potential customer’s spouse. But the law does prohibit discrimination based on race, religion, or national origin. And, at least in Colorado, based on sexual orientation as well. And that is why the baker did not win in either Colorado court: not because he didn’t wish to create a cake for someone’s wedding, but because he was choosing to decline that sale based on an illegal factor.

I suppose the baker could argue that he was not discriminating against the gay couple because they were gay…but merely because they wished to serve the cake they wished him to create for him at their same-sex wedding. That’s an interesting argument, but it still ends up in the same place: the baker sincerely believes that same-sex marriage is wrong…and that belief led him to decline to serve—by doing what bakers do for their clients—two specific would-be clients. He will argue that he was ready to sell them a non-custom-made cake, just not one suffused with his confectionary artistry. Can the law tolerate that specific distinction? We’ll find out soon enough!

In my opinion, the right to subscribe to whatever articles of faith one chooses cannot justify trampling on the civil rights of others. You are entitled to your beliefs. But you cannot use them to justify discriminatory practices in the workplace or the marketplace. Or anywhere. Freedom of religion grants us all the right to seek God along whatever pathway our consciences dictate, not the right to use our spiritual principles to behave in a prejudicial manner towards others.

The Supreme Court should uphold both earlier Colorado decisions and find that the baker violated the couple’s civil rights by declining to serve them…and that the sincerity of his beliefs should not be considered a mitigating factor. Nor does the distinction between selling them just a cake and creating a special wedding cake for them seem too meaningful to me. Isn’t that what bakers do, sell the cakes they bake to people who wish to buy them?

Jerusalem

As the whole world knows, the United States has recognized Jerusalem as Israel’s capital and announced plans to move the embassy there. I know the proposed site of the new embassy quite well—it is only three blocks from our apartment in the Jerusalem neighborhood known as Arnona, and roughly twice that far from the existing consulate. (Why we would need a consulate and an embassy that close to each other has yet to be revealed, at least to me. Presumably there’s a concept here!) But the specific site of the proposed new embassy is hardly the issue—other than with respect to its location on the Israeli side—barely—of the so-called Green Line that separates the land that was part of the State of Israel before 1967 both from land that belonged to Jordan and territory that was formally designated as no-man’s-land back then and which belonged neither to Israel nor to Jordan. Far more important is the decision itself…and the implications and ramifications such a decision will inevitably entail.

In his remarks, the President played down the decision as a mere recognition of facts on the ground. And although there is something to be said for analyzing things that way, Jerusalem not being the theoretical or hypothetical capital of Israel but a fully functioning seat of government with all the buildings and bureaucracy that such a designation entails, it is also just a bit glib and fails to take into account all the myriad reasons any rational observer could easily martial against making such a move at this time. Nonetheless, I believe the President did the right thing. And I’d like to use this space this week to explain why I think that.

First of all, it’s hard to fault the President for obeying the law. I am thinking specifically of the Jerusalem Embassy Act of 1995, which passed the Senate by a 93-5 vote and the House of Representatives by a 374-37 margin, and which called upon our government formally to do both things President Trump did this week: recognize Jerusalem as Israel’s capital and grant teeth to that recognition by locating our embassy there. That being the case, it would be entirely legitimate to wonder how to we here at all, twenty-two years after the passage of that bill into law by overwhelming majorities in both houses of the legislature. It’s an excellent question, one that apparently occurred to our nation’s senators as well—who voted unanimously (90-0) last June to adopt a resolution calling on the President to abide by the Jerusalem Embassy Act.

Formally, the answer has to do with the fact that the Constitution reserves the conduct of foreign policy to the President, for which reason Section 7 of the bill formally permits the sitting President to suspend the implementation of the bill’s provisions for a six-month period if the President reports to Congress that such a suspension is necessary to protect our nation’s security. And that is exactly what has happened for each six-month period since the law went into effect in 1998: Presidents Clinton, Bush, and Obama, all of whom openly derided the bill as unwarranted interference by Congress with the President’s right to conduct foreign policy, also—I’m sure entirely coincidentally—concluded that moving our embassy to Jerusalem would somehow adversely affect our nation’s security. Since it’s hard to imagine in what specific sense our nation’s security depends on the specific address of our embassy in Israel, President Trump correctly chose to obey the law of the land and not to flout the will of the people with reference to some threat to national safety that no preceding president even bothered to try actually to identify. So there’s that.

And then there’s the reality on the ground to consider. Even looking past the fact that Jerusalem is the capital of Israel in every meaningful sense, denying Israel the right to determine all on its own where its capital city should be located—a right not even questioned with respect to any other country of the world—implies that the Jewish claim to Jerusalem is somehow spurious or bogus, a view mostly put forward (other than by crackpots who revel in their ignorance of history) by the kind of haters who also question Israel’s right to exist as a Jewish state in the Jewish homeland. To insist that, alone among the nations of the world, Israel does not have the right to establish its capital wherever it wishes is tantamount to saying that Israel is not an autonomous country in the sense that the other countries of the world are, that for some reason it alone among the nations of the world needs the permission of others to conduct its own business as it sees fit.

And then there is the history issue to deal with as well. Part of the Palestinian propaganda campaign intended to make people question the right of Israel to exist has taken the form of ongoing disinformation regarding the history of Jerusalem itself. There have been, by universal scholarly consensus, Jews living in Jerusalem since around the tenth century BCE. Jerusalem was the capital of David’s kingdom and Solomon’s, and was then the capital of the Kingdom of Judah for as long as it existed. Later, it was the capital of the Maccabees’ kingdom, and it has been universally acknowledged, both by Jews in the Land of Israel and throughout the diaspora, as the spiritual center of all Jewish life ever since. Indeed, the fact that Jews who take prayer seriously pray for the well-being and security of the city three times a day is not irrelevant to this discussion. Nor is the fact that every observant Jew prays for the peace of Jerusalem when reciting the Grace after Meals over the course of a lifetime’s worth of meals. The Burial Kaddish we recite at graveside even includes a prayer for the peace of Jerusalem so that the last words an individual’s spirit might possibly hear before setting forth for the Next World are infused with a people’s love for its holy city. Jerusalem is so deeply woven into the warp and woof of Jewishness that it simply cannot be excised, without Judaism suffering the same fate any heart patient would meet if his or her cardiologist decided to solve the problem simply and efficiently by removing the patient’s heart and hoping for the best.

To question the historical relationship of the Jewish people to Jerusalem—which is the only real reason to question the right of Israel to declare Jerusalem as its capital city—is to deny the legitimacy of the Jewish faith itself. This is not a position anyone who does not wish to be perceived as the walking embodiment of anti-Judaism and anti-Semitism should ever feel comfortable being associated with, let alone espousing openly.

And then, on top of all that, there is the question of the Palestinians, who also wish to designate Jerusalem as the capital city of their state.  If this week’s decision does any real good, it will lie in convincing the Palestinians once and for all that they can have the state they claim so ardently to desire, and they can have it almost instantly and with Jerusalem as its capital. That, of course, will require sitting down with the Israelis and hammering out a final agreement that will suit all parties to it…and it is precisely that that the Palestinians seem unwilling actually to do. When I hear people castigating Israel for denying the Palestinians a state, I can’t quite understand the argument—it seems to me that the Palestinians could declare the independence of their state tomorrow with the almost full approval of the entire Arab and Western worlds, work out the details, and move forward from there with Jerusalem as their capital as well. If the Israelis can have their capital in West Jerusalem, why can’t the Palestinians have theirs in East Jerusalem? (The President specifically noted that this week’s decision does not move away from our commitment to the notion of Israel and the future state of Palestine negotiating its borders as part of an overall peace agreement.) But the world has appeared all too willing to let the Palestinians go on and on for years about the unfair way they are being deprived a state of their own when the reality is precisely the opposite. It’s the Catalonians and the Chechens (and, yes, the Navajo and the Cherokees) who can’t have their own country, not the Palestinians…who can have one simply by declaring their independence, negotiating the border, and getting to work building their nation. Who would say no? Haven’t 135 of the world’s nations already recognized such a state even without it actually existing? If moving our embassy to Jerusalem prods the Palestinians into meaningful action (and not into the kind of senseless violence that will ultimately lead nowhere at all), it will have been worth the ruckus the President’s announcement is sure to provoke in an already hostile world and its already hostile media.

We—we who stand with Israel and who believe in Israel’s inalienable right to exist and to flourish—we have been expected to look on without choking as the United Nations and its various affiliates, most notably UNESCO, approve more and more poisonous, deeply anti-Semitic, ahistorical, amoral, and profoundly offensive resolutions calling into question the ancient, ongoing, and permanent Jewish ties to Jerusalem.  So now, for once, a formidable power in the world—the United States government—has decided to act forcefully and meaningfully on behalf of the Jewish claim to Jerusalem as Israel’s capital city. I have to say that it’s good to feel marginally less alone than we usually do.  More than that, actually. A lot more.

'Oumuamua

People seem to expect rabbis—and I’m sure other clergypeople too, but I speak of what I know—people somehow expect rabbis to find the study of science unsettling, off-putting, and slightly threatening. Paleontologists have proven that dinosaurs existed, but they’re not mentioned in the Bible. Geologists have proven categorically that the world is something like 4.404 billion years old, but if you add up all those “begats” featured in Scripture you can barely get our planet’s age over 6000. Anthropologists have proven the existence of all sorts of classes of humanoid life that preceded our own, but the Bible describes Adam, the first man, as a fully recognizable example of Homo sapiens sapiens—our own subspecies—who is able from the get-go to speak, to till the soil, and to sew leaves into skirts. All of these are served up regularly as examples of reasons for people of faith to be wary about data that appears to contradict the simple meaning of the biblical narrative, but I’ve never been able to buy into that kind of skittishness. Indeed, the simple thought that, logically speaking, no two true statements can ever contradict each other—all truths by definition being congruent with all other truths—that seems to me a far more solid foundation on which to stand when viewing the world in its fullness and attempting to commune meaningfully with its Creator. The challenge, of course, is to find a way to fit all the pieces of the puzzle into a coherent whole without turning away from inconvenient, irritating, or disturbing data, which effort requires above all else not super-human intelligence but rather a deep sense of humility. Arrogance, not science, is the enemy of faith.

I’ve been thinking about the relationship between science and religion a lot since I began reading about ‘Oumuamua, a cigar-shaped reddish rock about 800 meters (that is, about 2624 feet) long that just recently passed by the earth on its journey from somewhere to somewhere else. (Its very apt name is derived from the Hawaiian for “messenger arriving from afar.”) When it was first noticed by scientists from the University of Hawaii’s Institute for Astronomy peering through the Pan-STARRS1 telescope located at the Haleakala Observatory last month, it looked like “just” another asteroid. Then, for a while, they though it was “just” a comet. Then, noting that ‘Oumuamua lacked most of the basic characteristics of comets, they went back to labelling it an asteroid…but the story has turned out to be much more complex than that.

In fact, ‘Oumuamua is now believed to be the first interstellar object within our own solar system that scientists have managed unambiguously to identify as such. Where it came from, no one can say. How long it travelled through interstellar space to get here is also unknown, as is its chemical composition. The most logical explanation for its existence has to do with the theory that, when solar systems are formed—and there are countless solar systems out there, the 2,701 planetary systems already identified by scientists almost definitely being the tiniest sampling of what scientists think are probably tens of billions of them out there in the cosmos—when these planets-around-a-central-star systems are formed, some material is cast off towards the edge of the system and then travels off into interstellar space where it might possibly one day chance upon some other solar system. The scientists’ assumption is that ‘Oumuamua is such a piece of rejected rock that has flown along for countless eons before coming unawares to visit for a while in our house.

It is definitely not from here. For one thing, it’s moving much too fast to have originated in our solar system. (The so-called “asteroid belt” between the orbits of Mars and Jupiter contains about 750,000 asteroids or comets, some of them hundreds of miles wide, so their common properties are well known.) For another, ‘Oumuamua’s orbit pattern is unlike any “normal” meteor or asteroid as well, which makes it impossible for it to have started out anywhere around here. And it’s already sort of gone—at least from the purview of land-based telescopes like the one in Hawaii. The Hubble Space Telescope and the Spitzer Space Telescopes, in orbit since 1990 and 2003 respectively, can see it still and will be able to watch it pass by Mars next month. But after that it will disappear from even the Hubble and the Spitzer as, traveling at a speed of 28 miles per second, ‘Oumuamua finally passes by Jupiter next May. These are very big distances we’re imagining here: it will need until 2022 to pass by Neptune and will only arrive near Pluto in 2024. And then ‘Oumuamua will be gone for good. Or at least gone from our view, from our gaze…if not entirely from our imaginations.

Other than with reference to their common cigar-like shape, ‘Oumuamua is not anything like the spaceship that brought baby Kal-El to Kansas after Krypton blew up. It has no passengers, is not packed with data intended to document a distant but now-long-lost civilization, was not “sent” to us by anyone at all. And yet it speaks to me…and profoundly and suggestively.

Like the prophets of old, ‘Oumuamua has slipped past the gates of our solar system to stand up briefly in our planetary town square and tell us something deeply unsettling…about ourselves, about our place in the world, about the unreasonableness of our wholly unearned arrogance with respect to the rest of the universe. I can imagine ‘Oumuamua taking a quick look at the earth as it whizzes by us, noting our greatest accomplishments—our most impressive buildings and bridges, our most exquisite artwork, our vast libraries containing at least most of the 130 million books published since the dawn of printing, our space-based telescopes that allow us to see farther into the cosmos than any human beings before us ever could have dreamt of seeing.  And I imagine it chuckling to itself as it prepares to deliver its brief message before disappearing forever:

You have invented an incredibly complex system of culture and society, whereas I am a piece of reddish rock flying aimlessly through space. I am bound to no planet, to no solar system, to no master at all. I don’t even have the burden of a specific name: my name (in this, rather like your prophet Moses) is just something one of your people made up the better to speak of me to others. But I have been places you not only haven’t seen but can’t even begin reasonably to imagine. And, unlike yourselves, my journey will end so far in the future that even I cannot imagine what it would mean for that many years to pass, just as you surely also can’t. So we are nothing alike!

Or are we?  After all, you too cannot say from whence you come, from what source your soul arrived in you and granted you personality, identity, and a sense of self real enough to distinguish you from every other living creature.  Nor can you say where you are going when your time comes to abandon life to the living and move on to the next stage of existence.  So you don’t know where I have come from and you don’t really know where you came from either. You don’t know where I’m going and you don’t know where you’re going either. Maybe we’re more alike than we both thought at first!

We’re both here for the twinkling of an eye, for a moment, for the amount of interstellar time that matches the time it takes one an earthling to take a single breath. Yes, I am traveling at 28 miles per second, which speed none of you could ever attain. But you are traveling at breakneck speed through the days and years of your lives nonetheless…and, just as I cannot, so also are you unable to slow down or, even if it were possible theoretically, to speed up. You can only move forward, just like me, day by day, month by month, year by year…as destiny brings us both to the edge of what we know of the world and then propels us into the part of which we know nothing at all. So look upon me therefore and see, not a piece of space garbage, but a sermon in stone, a lesson, a thought worth pondering. We’re both here for a moment and then gone to whatever awaits us past the boundaries of knowledge and experience. I’ve gotten used to my journey and I’m making the best of what time I have here. (I have been on the move for hundreds of millions of your earth years, after all.) I suggest you do the same!

And that is why I neither fear nor feel threatened by science. If God is the truth of the world, then how can any true statement be other than divine praise? If God exists in reality, then how can anything else that exists threaten faith? If ‘Oumuamua is part of God’s universe, then who is to say that it didn’t come our way to teach us a lesson or to deliver a sermon…possibly even the one I wrote for it and presented above.

Talking About Bad Behavior

I didn’t give the whole Harvey Weinstein scandal too much thought at first. I noticed the story in the newspaper, of course, but dismissed it as yet another example of some Hollywood guy I had slightly heard of being accused of behaving poorly by a variety of women he must have imagined would never jeopardize their chances to be cast in one of his movies by reporting his misconduct to anyone at all, let alone to the police or to the public. To the extent the story engaged me at all, I suppose I was pleased that these women had found the courage to come forward and imagined that the police would now go on to determine if there were grounds for an arrest. And, if he were indicted of an actual crime and if he ended up tried in a court of law and if he were to be found guilty, that he would end up being sentenced by the court to some appropriate punishment. Doesn’t that exact thing happen in the courts of our country every single day? So why, I think I thought, why was this even news at all?

But what I didn’t foresee—nor, I think, did many of us—was the tsunami of accusations of predatory sexual misconduct levied against various people that followed—including at least one former president of the United States, several prominent actors, producers, directors, authors, photographers, political pundits, and comedians, a candidate for the United States Senate, and a host of lesser-known personalities.

Some of the accusations involve behavior that took place in the distant past, but other charges relate to far more recent times. Some of the charges are vague, but others are very specific and detailed. Some sound just a bit far-fetched, but others sound—at least to my ear—entirely plausible. Given that the presumption of innocence is one of the bedrock values of our justice system, the question I wish to explore today is not related to any of the specific charges anyone has made about anyone else. Nor do I have anything particular to say about the response of any particular police department or any specific public prosecutor to any of these accusations. (Their job, of course, is specifically not to presume guilt in the wake of accusation, but simply to investigate carefully and thoughtfully when one individual accuses another of wrongdoing and then either to charge or not to charge someone with a crime based on the outcome of their investigations.) But I’m more interested in people who have spoken out in public to accuse others of poor behavior without there being any chance at all of an arrest…either because the person accused has died in the interim, because the incident happened so long ago that the statute of limitations for that crime makes indictment a legal impossibility, because there were no witnesses to the alleged crime and no evidence to adduce in a court of law, or—in some cases—because the alleged incident involved behavior that, for all it may be have been loutish or boorish, did not involve the breaking of any actual laws. In cases like that, should people come forward to speak out? Or is that just so much loshon horo, that to say: gossip of the sort that decent people should avoid not only speaking themselves but even listening to. That is the question I’d like to explore this week.

It’s not that easy a question to answer. Our Jewish tradition has an extremely strong animus against talebearing. Scripture itself makes this explicit and rabbinic sources seem never to tire of finding ever more extreme language with which to condemn the intentional spreading of gossip, libel, or calumny outside the legal context. Indeed, there are a whole series of ancient texts that equate gossip with murder! And another set of texts that make explicit the point that the prohibition against gossip applies equally when the report is true and when it is false! So extreme, in fact, is the rabbinic aversion to telling tales in public about other people’s poor behavior that the rabbis imagined that the Torah actually needs formally to permit people to testify in court about other people’s bad behavior…and precisely because testimony in which one citizen speaks out in public about another’s bad behavior would otherwise be forbidden as talebearing and gossip. Nor are these strictures solely concerned with the one doing the talking: the classical sources also make it clear that the prohibition against talebearing involves not only telling damning tales about others, but also listening to them. So making a case against speaking up other than to report misconduct to the police or to give testimony in court would be relatively easy to make.

But, even despite the sources referenced above, the evidence of tradition is nonetheless equivocal and, in fact, there are many instances in which the general prohibition about speaking poorly about others is waived. It is not considered slanderous, for example, for an employer to answer honestly if a former employee has given his or her name to a potential future employer so that the latter can ask the former about the employee’s skills and work ethic, and this is so even if the honest answer to the question asked reflects poorly on the employee.  Nor is it prohibited to alert someone to some potential danger even if doing so involves saying something about a third party that under other circumstances would be prohibited as gossip or slander.  And, as mentioned above, it is not only not prohibited but legally required that eye-witnesses to wrongdoing step forward to give testimony in court even though this will obviously almost often involve speaking ill of the accused individual.

Most crucial for the issue under discussion, the fact that the very verse in the Torah that prohibits talebearing goes on to warn against “standing idly by the blood of another” was taken by the rabbis unequivocally to mean that it is actually forbidden to remain silent when speaking out might prevent harm to some innocent third party. The rabbis understood that wrongdoing, and particularly sexual misconduct, is more reasonably to be taken as a function of character than of opportunity. And, that being the case, it seems reasonable to think of wrongdoing as something in which wrongdoers habitually engage rather than as solitary occurrences that unpredictably occur when weak-willed individuals find themselves just one single time at the malign confluence of opportunity, desire, and recklessness. In my opinion, this is the context in which we should evaluate the rightness or wrongness of coming forward to report on predatory behavior directed against oneself outside the context of making a report to the police or giving testimony in a court of law.

We live in a world of almost unimaginable vulgarity. Indeed, we have all become so inured to profanity, tastelessness, and crudity that we barely notice it any longer. Even principled opposition to such things sound ridiculous to most of us or, at best, schoolmarmish and priggish. Imagine, for example, someone who were simply to refuse to watch movies featuring obscene language, or someone who made the conscious decision not to attend theatrical performances that featured indecently dressed actors or actresses, let alone naked ones. There are such people in the world…but which of us would want to be thought of as the kind of naïve, culturally backwards person so unattuned to the reality of modern culture as actually to be offended by its excesses? Nor do I speak as a beacon of virtue in this regard—I myself go to such shows and see such movies without giving the decision to purchase my ticket even a moment’s thought. Perhaps that’s simply how things are in this world we have constructed for ourselves…but that is also the context in which people feel free to behave in ways that would once have been considered not merely degenerate, but truly debauched. This is not to excuse the behavior of the sexual predators among us—just to observe that all of us together have chosen to create, and then to tolerate, a world in which sexual predators feel free to act, some on the supposition that they will never be caught and others simply because they don’t really see what’s wrong with their behavior. They are the wrongdoers, to be sure. But we, speaking for society itself, have created the stage upon which they have been able to perpetrate their wrongdoing. And when we are done being titillated by the avalanche of detailed accusations we have heard and read over these last few weeks, it would be more than appropriate to consider what we as a society have wrought. And also what we could conceivably do to create a world in which immoral, predatory behavior is not merely against the law, but something ordinary people—men and women alike—consider truly unimaginable.

And that brings me back to my initial question. Should people speak up if there is no chance of bringing the people they are accusing of wrongdoing to justice? I think that the question has to turn on the likelihood that a public accusation will rescue future victims. If the accused party, say, is dead—and there is therefore nothing to be gained by the accusation other than besmirching the reputation of someone who cannot defend him or herself—I think it would probably be best simply to remain silent.  If there is a reasonable expectation of legal action against an aggressor, then speaking up is not only allowed but requisite. If there is no chance of legal action, however—for example, if the statute of limitations makes an indictment impossible—then the issue has to turn on the possibility of saving future victims from a predator’s grasp by speaking up. If that possibility exists, then victims should come forward even if there is no reasonable expectation of an arrest or a trial, let alone a conviction.

Guns in America

We give hurricanes and tropical storms names—or the World Meteorological Organization does—primarily to make it possible to reference them without having to remember their precise dates and where exactly they made landfall: talking about Harvey, Irma, and Maria is a lot simpler than trying to reference them as “that storm in Texas back in August…or was it September?” or “that hurricane that ended up on the other side of Florida from the one they expected it to savage.”  But although naming them surely does make it easier to talk about them, it also personifies them in a strange way that makes them sound less like unavoidable natural disasters and more like unwanted visitors whose arrival could presumably have been prevented had we only thought in advance to turn off the porch lights and pull in the welcome mat. (By the way, did you know there are only six lists of names used for storms in each separate ocean region, each series repeated every six years other than when super-storm names like Katrina are permanently retired and a new name starting with that letter is chosen? Click here for a list of the names of future storms through 2022.) Still, the practice is probably more useful than wrong-minded, and it is at any rate here to stay.

We don’t have a similarly adorable way to refer to the perpetrators of mass shootings, however. Partially that is because the shooters actually have names and so hardly need new ones assigned to them. And using their real names feels right for another reason as well—because it is makes it feel more natural just to blame the shooter for the shooting and be done with it than to ask if society itself bears any responsibility for these horrific acts of bloodshed. And that impetus to look no further than the shooter to explain the shooting is incredibly strong. Indeed, when the President said the other day that the massacre in that Texas church was “about” mental illness and not guns, he was merely giving voice to the siren sentiment that Sutherland Springs had nothing to do with society itself, just with some crazy person who ran amok with a Ruger AR-556 semi-automatic rifle in his hands. And what could that possibly have to do with anyone other than the shooter himself?  Yes, it is true that there is the horrific mistake made by the Air Force in this specific case to take into account—an error that allowed a man with a criminal record for uncontrollable violence to purchase a gun he should have been forbidden by federal law to acquire—but that detail, for all it is truly upsetting, is also strangely re-assuring. It was just an error, you see: if the Air Force had correctly entered the shooter’s domestic violence court-martial into the proper federal government data base, then he would indeed have been barred from purchasing the weapon he used to murder all those innocents at the First Baptist Church last Sunday and his victims, including a dozen children, would still be alive. So it’s all about Devin P. Kelly, the shooter. And it’s a little bit about the Air Force. But it’s easy to insist that it’s not about anyone but the shooter…and particularly not about people who hadn’t heard of him or Sutherland Springs, Texas, until last Sunday.

That, however, is only one way to interpret things. If the President is right that this and similar crimes are all manifestations of mental instability on the part of the shooters and thus unrelated to questions of gun safety or gun control, then our nation—that had thirty times as many gun murders in 2015 than Canada, Australia, or Spain—should also have thirty times as many mentally-ill citizens. But I cannot find any survey that suggests that that is even remotely how things are. France, for example, is just behind us in terms of percentage of citizens treated for mental illness, but had one-thirtieth the number of gun murders that we did in 2007 (the last year for which I could find accurate figures)…just the same as the countries mentioned above.  So, whatever these figures ultimately mean, they clearly do not mean that we have thirty times the gun murders that other countries have because we have thirty times as many deranged citizens in our midst. (For two interesting surveys comparing the prevalence of mental health issues in various countries, click here and here.) But if that is the case, then why do we have these endless mass shootings to contend with in our country?

Part of the answer does indeed have to do with craziness, but not with the craziness of the shooters. In a Pew Research Center poll conducted last March and April, a full 11% of Americans responded that they did not feel that it should be illegal for mentally ill people to purchase guns. In a Quinnipiac University National Poll conducted last month, 12% of the respondents who live in households with guns responded that they saw no reason for a nation-wide ban on the sale of guns to people convicted of violent crimes. The response from respondents who live without guns was, in a sense, even more astounding: 15% of those responders—all of them people who themselves do not own guns—agreed that there was no need for such a national ban of gun sales to violent criminals. But even harder for me personally to fathom is that 7% of people who live with guns and 4% of people who don’t feel that there is no need to subject would-be gun purchasers to any sort of background checks at all—in other words, that guns should be sold in America in roughly the same way Starbuck’s sells coffee: to whomever walks in and has the purchase price in hand. And one final statistic to ponder: when asked if they agreed with the thought that a ban on the sale of guns to people convicted of violent crimes would reduce gun violence, 39% of people who live in “gun households” disagreed, as did 25% of people who live in households without guns. (Click here to see these statistic in more detail.)

I find all of the above unfathomable. Who are these people that don’t think that keeping guns out of the hands of violent criminals would reduce gun violence? It’s a good question, too: if 25% and 39% average out at 32% of our American population, that would be about 104 million people who don’t see a clear correlation between criminals owning guns and crimes that involve the use of guns being committed. Clearly, I’m missing something here. But what could it be?

The right to bear arms is part of our national culture, part of our distinctive American ethos. The Second Amendment guarantees the right of citizens to belong to armed militias—presumably envisaged by the founders as state-wide fighting forces called into existence to defend the citizenry against outside aggression—but already in our nation’s infancy this was interpreted to guarantee the right of individual citizens to bear arms even outside the framework of organized fighting forces. And the notion that reliance on a central government to make and keep the citizenry safe is invariably going to be a good idea is not a point anyone even slightly conversant with Jewish history can or should argue as though it were a self-evident truth. And so I find myself torn in different directions here, wishing the Jews of Kovno, say, had been armed when the Germans came to take their children, but—without feeling naïve or foolish—simply not believing that kind of danger to be plausibly something we could ever encounter in America.

In my heart, I really do think that America is different…and that the foundational ideas upon which our republic rests and for which it stands really do guarantee our safety more than a Ruger AR-556 in each of our broom closets ever could. And, that being the case, I simply don’t see how anyone can read the Second Amendment to imply that every citizen, even mentally ill individuals or people convicted of violent crimes, has the right to own weapons capable of murdering fifty-eight people in a matter of minutes, as Stephen Paddock did last month in Las Vegas when he started shooting from his hotel room window at concert goers gathered below. When the President said with respect to the massacre in Texas last week that this was a “mental health issue at the highest level,” he was entirely right—but not in the way he meant. Yes, I’m sure that Devin Patrick Kelly will be posthumously diagnosed as deranged. But truly crazy is a nation in which scores of millions of citizens do not believe that making an effort, even an only partially successful one, to keep guns out of the hands of violent criminals and mentally ill individuals would reduce gun violence in our land.

Clearly, this problem is not going to be solved with one grand gesture by Congress. But small steps forward are also worth taking. Writing in the Times last week, Nicholas Kristof offered a heartening parallel by pointing out that our nation had one-ninth the deaths in automobile accidents in 2016 than in 1946, and that those seventy years of progress can be explained by the slow, incremental introduction of more and more innovative practices that simply made fatalities in cars less likely: seatbelts, air bags, child safety seats, etc.  That is a dramatic change from my father’s generation (my Dad was 30 years old in 1946) to my kids’ generation (my younger son had his 30^th birthday earlier this year). And it happened simply because there was a concerted, unambivalent national will to make it happen. And because scientists of various sorts were able to find ways to make cars safer without making them undrivable or unbearably slow or unwieldy. If that happened, and it did, then guns too can become safer. And the laws that govern their use can be made tighter in rational and reasonable ways…and without strangling or stunting the gun-owner’s legitimate right to bear arms. Take a look at Kristof’s article (click here), and you’ll see what I mean. Small steps are worth taking…even if they only yield truly dramatic results over decades.

If Sandy Hook wasn’t enough to bring us to our senses, it’s hard to imagine what would be. And yet…it simply doesn’t seem possible that there is no way at all to reduce gun violence in America. All that is required is some unequivocal national resolve to act…and creative, inspired leaders prepared to lead us up out of this morass into which we have sunk.

Compromising

John Kelly, the White House Chief of Staff, seriously got my attention the other day when he suggested that the Civil War could have been averted had people on both sides been more willing to compromise, which thought he then followed up with a wistful observation about the consequences of parties in opposition being unwilling to meet each other halfway: “…men and women of good faith on both sides made their stand [as a result] where their conscience had to make their stand.” In other words, Kelly, a retired Marine Corps general, was putting forth the notion that the deaths of almost a million people (including soldiers on both sides, free civilians, and slaves) could have been averted, possibly even totally, had people with opposing views only been willing to reach a compromise that would have been at least marginally satisfactory to all sides without requiring that anyone on either side compromise his or her own principles unduly…or at least impossibly. But is that really true?

There are two ways to approach that question. One is to note that the decades leading up to the Civil War were filled with so many compromises set in place to hold the union together that it’s hard even to remember their precise chronological order. (The correct order is as follows: the Missouri Compromise of 1820, the Compromise Tariff of 1833, the Compromise of 1850, and the Kansas-Nebraska Act of 1854. There were also any number of lesser-known, unnamed efforts and initiatives intended to defuse the tension between slave states and free states, each of which too was some sort of compromise.) So to say that these people simply couldn’t compromise isn’t quite right: in a sense, all they did was compromise. But, in the end, because each of these compromises ended up permitting slavery to continue, even if managing in one way or another to delimit its extent (and particularly outside of the traditional South) or its terribleness, they all came to naught. And that was because people who loathed the “peculiar institution” could never truly be content with any compromise that allowed men and women in bondage to be treated as chattel that could be bought and sold rather than as actual human beings possessed of inalienable human rights. To suggest, therefore, that the responsibility for the bloodiest of all American wars rests equally on the shoulders of all concerned because their shared disinclination to compromise led inexorably to war—that is the viewpoint I’d like to write about this week.

Time has not been kind to our founders with respect to their inability to see slavery as a pure evil to be eradicated, not tolerated…and regarding which compromise aimed at making slavery less bad was therefore impossible.

Some readers may have come across an extremely interesting essay by Noah Feldman, a professor of Law at Harvard, that was published in the New York Times last week. (For readers who didn’t see it, click here.) In it, Feldman writes about James Madison, our fourth president, and suggests that people trying to unravel the racial politics of modern-day American start by contemplating his willingness to compromise. Madison was a principled man. He regularly referenced the inherent right to liberty of enslaved individuals, including his own slaves. At one point he suggested—apparently entirely seriously—that Congress sell the western lands acquired through the Louisiana Purchase of 1803 to raise the $600,000,000 he estimated it was going to take to purchase every slave in the United States, all 1,500,000 of them, and grant them their freedom. (His plan was for Congress to find the money to send the newly-freed slaves back to Africa, where he felt they could flourish best absent the inherent “prejudices of the whites” that would have made it unlikely that they could simply live as free Americans in this country.) He left clear instructions to his wife, Dolley, to free all his slaves after his death, which instructions she for unknown reasons did not obey. In other words, here was the man among our founders who truly understood the perniciousness of slavery…and who wished, not only for the slaves he personally owned, but for all slaves held in bondage in the United States to be freed.

In other words, here was a man whose middle name was Compromise. He understood the badness of the institution and he came up with suggestion after suggestion to seek the kind of compromise that would end it permanently without wrecking the economies of states that were built on slave labor. Yet he went along with the idea of prolonging the slave trade for decades after independence (the importation of slaves from overseas only ended here in 1808) as the price for bringing Georgia and South Carolina into the union.  It was Madison who first proposed that each individual slave be considered the equivalent of three-fifths of a free person for the sake of determining how much each state owed the federal government. That specific proposal was not accepted, but the Constitutional Convention of 1787 did indeed adopt Madison’s proposal in order to determine representation in Congress based on the population of each state. Was that the specific kind of thoughtful compromise that General Kelly wishes men like Madison had been around to implement in the 1850s?

Is compromise always a virtue? In the years leading up to the Second World War, compromise after compromise was reached with Nazi Germany in an attempt to head off war. But if, instead of offering up other people’s land to the Germans in 1938, France and England had gone to war, it seems at least possible that a swift victory, followed by regime change, could have been attained. If the United States had been involved from the beginning, victory would have been not merely possible, but more than likely. Compromising with evil—with the fascism behind Nazism or the racism behind pro-slavery sentiment—nothing too good can ever come of that kind of compromise.

I have a special relationship with James Madison, but I’m guessing no readers will be able to guess what it is. Do you give up? You might as well: my relationship with our fourth president is rooted I the fact that the apartment house in Queens that I grew up in was called, of all things, “The James Madison.” (Most of the six-story red-brick apartment houses along Yellowstone Blvd. and 108^th Street in Forest Hills were named after some historical figure from our nation’s past. Before we lived in the James Madison, we lived up the hill from there in the Benjamin Franklin, also known as 103-26 68^th Road.) So I grew up feeling some sort of strange kinship with the man. And he was, in many ways, one of our nation’s most worthy founders.  As Jefferson’s Secretary of State, he managed to negotiate the Louisiana Purchase that expanded our nation’s borders far beyond the Mississippi. He successfully guided our nation through the War of 1812, which resulted in the firm establishment of the U.S among the family of nations and made of us a naval power to be reckoned with. He personally wrote the Bill of Rights.  But he was willing to tolerate slavery even though he clearly believed the institution to be morally indefensible. In other words, he was prepared to compromise…even if doing so meant abandoning one of the most basic of all principles upon which our national ethos was and is based, the inalienable right of every individual to live free.

Is it fair to look down on people for accepting as givens the basic beliefs about the world that “everyone” simply believes to be true? A few years ago, I remember reading and slightly liking Markus Zusak’s 2005 novel, The Book Thief.  The plot was a bit contrived and the writing, I thought, easily betrayed the book’s origin as a so-called “young person’s novel.” But what interested me was the framework itself in which the story unfolded: set among eleven-year-olds in 1943, the plot concerns children who have in their lives only known Nazism as their nation’s guiding philosophy. All the figures of authority in their lives are openly anti-Semitic and fully subscribed to the principles of Nazi fascism—and that list includes their teachers in school, their minister in church, the policemen in their town, the mayor and his town council, all the shopkeepers, the librarians in the public library, and their doctors and dentists.  In other words, the characters in the book are children who have never known life other than under the Nazis. Mostly, they accept as obvious truths the lies they hear from all the authority figures in their town. But not all do, and in particular one specific girl, the so-called “book thief” herself, does not—and so comes to understands the perniciousness of Nazism without anyone explaining it clearly to her, rebelling against a philosophy so pervasive in her time and place that her friends barely even notice its existence as a thing that even could be evaluated, let alone rejected.

We tend to lionize people who somehow find it in them to look past what everybody just “knows” to see a truer, clearer version of reality—like those in antebellum America who somehow knew to reject all those quasi-scientists and ardent theologians (including rabbis) who felt certain that slavery was a reasonable institution because black people were intellectually and emotionally inferior to white people. Today we laugh at that kind of “scientific” justification of racism…but what of people who lived in a world in which everybody just “knew” that to be true, the same way we today just “know” that it is reasonable to own and trade animals—and to eat their flesh and wear their skins—because they presumably exist in the first place solely to serve humankind?

General Kelly was wrong when he argued that the Civil War could have been averted by compromise not because yet another compromise could not conceivably have been worked out between free and slave states, but because any compromise that ultimately left chattel slavery intact was almost by definition doomed to collapse eventually. Those possessed of a clear moral vision understood that easily, and also that enduring compromise is only truly possible when both parties to it can respect the other side’s opinion and its proponents’ right to hold it. But when the other side favors something openly evil and wrong, compromise is impossible…and reprehensible. The Civil War could have been averted by abolishing slavery in all states and working out a way to keep the economies of the slave states from collapsing. That would not have been labeled a compromise—it would have been labelled a bold stroke to preserve the union not by compromising its most basic values but by affirming them.

Time Capsules

I’ve always been fascinated by the concept of time capsules, the notion of packing up the specific things that most potently and meaningfully symbolize the culture of some specific place and time and sending them off to the future either by actually shipping them out—like the so-called “golden record” packed into both Voyager 1 and Voyager 2 to bring evidence of the earth’s culture to whatever alien civilizations they encounter when for the first time they come within a couple of light-years of a star around which revolve at least some earth-like planets in about 40,000 years—or merely by burying it in the ground for future generations to unearth and enjoy, like the one manufactured by Westinghouse and buried on the site of the World’s Fair in in 1939 with the intention that it remain sealed for five thousand years and then opened in 6939. What 70^th century residents of Queens will actually do with a Sears Roebuck catalogue, of course, remains to be seen. Maybe they’ll order some thing from Sears!

There are a lot of these things, actually. Some are huge. The “Crypt of Civilization” time capsule created between 1937 and 1940 at Oglethorpe University in Brookhaven, Georgia, for example, is actually a large room crammed full of things (including a set of Lincoln Logs, a bottle of Budweiser beer, an adding machine, some Artie Shaw records, and a baby’s pacifier, among thousands of other things including about 650,000 pages of microfilmed books and other documents), and is scheduled—if that is the right word, since there’s obviously no one to schedule it with—to be opened only on May 28, 8113. (The date was chosen because it was as far into the future as written historical records were believed at the time to bring us back into the past.) Others, of course, are much smaller. But all were created intentionally for the purpose of communicating through the transmission of specific things with people in the distant future.

And then there are accidental time capsules, rooms or boxes of things that were not set aside to communicate with the future…but which somehow managed to remain intact over centuries and thus successfully to offer people of a different time and place a glimpse into a world that would otherwise be lost to them almost entirely.

The Cairo Genizah would be the best example of such an inadvertent time capsule. Constituted of more than 300,000 documents that were stored haphazardly in a back room of the Ben Ezra synagogue in Old Cairo, the Genizah was neither hidden from view nor intentionally preserved for future readers…but ended up nonetheless providing a bird’s eye view into Jewish life from the ninth through the nineteenth centuries. Of particular interest were documents that provided a sense of what life was like for Jewish communities in North Africa and in the Mediterranean basin from the tenth to the thirteenth centuries. The richness of the documents cannot be overstated: countless Jewish communities that were presumed to have left nothing at all behind emerged from the Genizah in all of their variegated richness. Personal letters, bills, contracts, k’tubbot, communal records, religious tracts, court records, children’s notebooks, prayerbooks—scholars whose names will forever be linked to the Genizah like Solomon Schechter or Shlomo Dov Goitein managed to rescue entire communities from oblivion merely by reading their literary detritus, much of it the kind of thing we routinely discard today either by burying it or just by pitching it in the trash once it’s been digitized. (To learn more, I suggest reading Adina Hoffman and Peter Cole’s book, Sacred Trash: The Lost and Found World of the Cairo Genizah, published by Schocken in 2011 and very enjoyable and interesting.)

About five years ago, the world learned of a second such treasure trove, the so-called Afghan Genizah, a storehouse of thousands of Jewish documents and manuscripts, some of them more than a thousand years old, that were found in caves that the Taliban had been using as hide-outs. (Click here to see the article on the find published in 2013 in the Daily Mail in the U.K.) How exactly the cache of documents was found and by whom, and how they were brought out of the country remains unknown—and not only to me personally. Some choice documents were purchased—although it was not made public from whom—by the National Library of Israel. (Click here for a very interesting CBS News account of the library’s coup in acquiring these documents, which also fails to say how exactly they bought them and from whom.) But this “Afghan Genizah” is another example of an inadvertent time capsule, one that somehow managed to do what “real” time capsules are meant to do—convey the physical evidence of a thriving, rich, vibrant civilization now vanished almost entirely without a trace to people living long afterwards who would otherwise have known nothing at all about it.

And now I come to the real topic of this week’s letter: the treasure trove of documents unearthed just a few months ago in a church basement in Vilnius, Lithuania. What’s actually going on is hard to say. In 1991, a similar trove of documents was found in the same church basement…and now, 26 years later, they’ve found even more. (You have to wonder how big that basement is exactly. The new cache is made up about 170,000 pages of material, not exactly something you could overlook in a box in some corner!) But, whatever, the material has been announced…and its story is both arresting and horrific at the same time. The Nazis, as is well known, were planning to create some sort of ghoulish museum and research center in Frankfurt relating to the Jewish people once they finally finished exterminating them and, to that future end, an effort was made to gather together a trove of Jewish documents, artifacts, books, religious appurtenances, and manuscripts for use in this future archive. More weirdly still, a team of about forty Jewish scholars was appointed to gather this material in Vilnius—and kept safe from deportation to the camps until their work was done. (One, at least—the great Yiddish poet Abraham Sutzkever—actually survived the war and went on to a career as a well-known poet in Israel, where he died in 2010 at age 96.)

That much was known all along. But what was not known was that these same scholars used the limited time they had been given to spirit away hundreds of thousands of documents that they hid wherever they could in the city, mostly in underground bunkers and in remote attics. Even in the context of the Shoah, the fate of the Jews of Vilna is horrific: at least 90% of the pre-war Jewish population of 160,000 souls was murdered by the Germans and their Lithuanian collaborators. The rest of the story is also fascinating. When the Red Army liberated Vilnius, some of the material was sent to the YIVO Institute for Jewish Research in New York, whereupon a Lithuanian librarian named Antanas Ulpis started scouring Vilnius for more hidden Jewish documents, which he then gathered in the basement of the Church of St. George, where they remained for decades. The archive seems then to have been totally forgotten so that, when Lithuania became an independent country after the collapse of the Soviet Union in 1991, a quarter of a million pages of material were “discovered” in the church’s basement and transferred to the National Library of Lithuania. That was enough of a miracle…but now, all these years later, still more documents have been “discovered.” That’s a lot of “discovering” for hundreds of thousands of documents that weren’t hidden in the first place! But whatever the real story turns out to be, the bottom line is that the entire archive—all 420,000 pages of it—will now be housed in the National Library of Lithuania, where they will be digitized for use by scholars and general readers all over the world.

And what do we see when we peer through the looking-glass at a city that was once one of the most vibrant of all Jewish cities, the city that Napoleon (of all people) once referenced as “the Jerusalem of Lithuania”? It will take decades before anyone wades through all of this material, but some treasures have already been announced. A postcard written by Chagall. Five different notebooks of poems by Chaim Grade, perhaps the greatest of all twentieth-century Jewish authors. Some unknown letters by Sholom Aleichem. And the autobiography of Bebe Epshtein, a fifth grader writing in 1933. She must have been about ten years old then, which makes it unlikely she survived to adulthood. (She would be 94 if she were alive. I suppose she could be! But she hasn’t come forward. And the chances of her having survived are very slight.) What is chilling about her book—which will surely eventually be published in its entirety—is its ability to remind us, yet again, that the communities destroyed by the Nazis were populated not by professional martyrs but by regular people, by families whose daughters attended the fifth grade in the Yiddish School on Makove Street that Bebe attended and who fully expected to live long enough to enjoy seeing their children grow to adulthood and produce their own families.

Judging from the media coverage, the world is—at least so far—mostly interested in the recovered artifacts that relate one way or the other to famous people like Sholom Aleichem. But far more interesting to me personally is the material that relates to regular people, to parents and children, to teachers and pupils, to shopkeepers and their customers. In the same way that the greatness of the Cairo Genizah does not rest in the blockbuster finds that made it famous—the handwritten letters by Maimonides, for example—but rather in the portrait the huge number of documents relating to non-famous people creates of a vibrant, rich society existing in its time and place, this second trove of documents in Vilnius is going to be primarily important for the portrait it will offer of a culturally rich and dynamic community that was utterly destroyed in a tidal wave of violence and destructive zeal the likes of which the world hadn’t ever seen before and will, I hope, never see again.

I’ve occasionally asked myself what I would put in my own personal time capsule if I wanted to leave some trace of myself for my descendants in the thirty-first or forty-first century to ponder. My answer so far: a thumb drive with everything I’ve ever written on it, another with all our family’s photographs, my grandparents’ naturalization certificates, a video clip of me performing “A Rabbi Who’s Conservative”…and a sample of my DNA. That should do it!  

Sensitivity and Reasonableness

I’ve been watching with interest the national debate about the ideal fate of statues in prominent places that serve to glorify as heroes the Confederate military and political leaders who fought both for the right of states to secede from the union and for their citizenry to own slaves.

Clearly, it was the Charlottesville march in August—which was formally organized in the first place to protest that city’s decision to take down a statue of Robert E. Lee—that gave the whole effort to deal with these statues one way or the other its feel of urgency. And, although the eventual fate of that specific statue remains unresolved, the fracas in Virginia prompted decisions in many municipalities and in several states, including New York, to remove similar kinds of statues and memorials. And further decisions are pending in many other jurisdictions, primarily but not at all exclusively in the South.  Nor does this national disinclination to fill our public places with monuments to the memory of individuals deemed unworthy of the honor just have to do with Confederate generals or officers in the Confederate government any longer—there are movements afoot now to remove statutes honoring Christopher Columbus, venerated in my childhood as the “discoverer” of the Americas but now recalled in many circles chiefly as an imperialist and colonialist who brought chiefly misery to the native peoples he “discovered” in the course of his travels.  Just this morning, in fact, I became aware of the effort underway to remove a bust currently on display on Fifth Avenue that honors Dr. J. Marion Sims, the physician revered by many as the father of modern gynecology and a brilliant innovator in women’s health issues but condemned by others for his use of female slaves as the subjects in his experiments. (For more about the Sims controversy, click here to see a very interesting essay published in the Journal of Medical Ethics on the topic.) Still, it is with respect to personalities connected with the Confederate States of America that the issue is at its most volatile, and by far.

Writing as a Jewish American, it’s interesting—and more than a bit validating—to see people caring about an issue like this at all.  

In our community, after all, we have always been expected not to care when we walk past churches that glorify the name of Martin Luther, a rabid anti-Semite whose solution to the Jewish problem, as he saw it, was to advocate that synagogues be burnt to the ground, that Jewish prayerbooks be incinerated, that rabbis be forbidden to preach in public, that Jewish property and wealth be seized, that Jewish homes be razed, and, ultimately, that the Jews of Germany be murdered if they decline to convert to Christianity. So how do I feel when I walk past a church that untroubledly self-defines as “Lutheran” as though that were just a reference to some abstruse version of Protestant theology promulgated by the church’s founder centuries ago? About the same way, I’m guessing, the Jews of Kiev feel walking daily past the great monument in St. Sofia Square to the memory of Bogdan Khmelnitsky, remembered by Jewish Ukrainians as the leader of the seventeenth-century uprising that resulted in the destruction of about 300 Jewish communities and the massacre of something like 100,000 Jewish souls—a calamity so shocking in its day that contemporary authors likened the devastation to the destruction of Jerusalem in ancient times.  Or how English Jews feel when they walk past the statue in Burgh-le-Marsh honoring the memory of King Edward I, who expelled the Jews of England from their homes and their homeland in 1290—ancient history to most Britons, perhaps, but just yesterday for students of Jewish history. Or when Jews living in or visiting Spain walk past statues, like the one in Cordoba, honoring the memory of King Ferdinand and Queen Isabella—whose horrific decree of expulsion brought such unimaginable misery to uncountable Spanish Jews in 1492. Or how the Jews of Rivne would respond, had they only not all been murdered, when walking past the bust of Simon Petliura erected in their own home town that blithely overlooks his role in the 1919 pogroms that took the lives of somewhere between 30 and 50 thousand Jews in Ukraine…including in Rivne itself. Or how the Jews of Vinnytsia, also in Ukraine, would have responded—had they too not all been killed by the Nazis in 1942—when a new statue honoring Petliura was unveiled in that town just last Monday.

You see where I’m going with this. We’ve gotten used to walking past these horrors—not to mention walking past Ford dealerships without recalling Henry Ford’s deeply-felt anti-Semitism or past the mural honoring Charles Lindbergh that featured prominently at the San Diego International Airport without pausing to be offended the man’s unapologetic anti-Semitism…or, for that matter, past the bust of Ezra Pound, an open Nazi sympathizer and vocal anti-Semite, in—of all places—the National Gallery of Art in Washington, D.C  All of this has become so natural for us, that it sounds—even to me—slightly childish even to bring any of this up for discussion. Do we really expect the Lutheran Church to change its name merely because it is named after a rabid Jew-hater? Clearly, we do not. (Speaking honestly and taking into account the Lutheran Church’s unapologetic anti-Israelism, why would we?) But maybe this would be a good moment to rethink that kind of timid acquiescence to the celebration of wicked individuals merely because they also did some praiseworthy things.

I’ve seen the point made in a dozen essays in these last week that there are no Hitler memorials in Germany today for two simple reasons: because such monuments would be illegal under German law (click here for a very interesting Politico essay by Joshua Zeitz comparing the way Germans deal with the heritage of Nazism and the way our Southern states do or could deal with the heritage of the Confederacy), but also because a huge and decisive percentage of today’s Germans are interested in profoundly distancing themselves from their Nazi past, not in embracing it. That is surely true, and for both those reasons, but the model doesn’t quite fit the controversy regarding the Confederate monuments in our country, and for the simple reason that the American relationship to the Civil War is, I believe, infinitely more complex than the contemporary German attitude towards the Second World War.

It is widely believed today that the Civil War was “about” slavery more than any other issue. But I can remember clearly being taught in eleventh grade that slavery itself was just a side issue and that the real issue being adjudicated on the nation’s battlefields was whether the nation was going to be a union of independent states able to come and go at will or a unified country willing to fight for its national integrity and from which no state had the right to secede. That view has obviously been seriously modified over the years, but I think I understand where it was coming from: we were taught to look past the slavery issue precisely so that we would find the war—and thus war itself—truly tragic. (I was, after all, learning about the Civil War precisely as the Vietnam War was unfolding day by day on the front pages of the nation’s newspapers and night by night on its television screens. And that, as people my age will recall, dominated everything…most definitely including the way history was taught to us in high school.) Nor did the point itself feel all that exaggerated: wasn’t our own country, after all, founded on the self-arrogated right claimed by the thirteen colonies to secede from Britain merely because the citizenry felt that it had become necessary “for one people to dissolve the political bands which…connected them to another and to assume…the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”?  It’s a challenging question to ponder, and so much so that the long-standing debate whether slave-owning Virginians like Washington and Jefferson would have supported or opposed the right of the southern states to secede never seems to end too conclusively. Clearly, the goal—the educational goal, I mean—of the history curriculum in high school was to make us feel more uncertain about the argument that the Civil War was justified than proud that the “right” side won.

Today, of course, it is commonplace to understand that the whole issue of secession, and thus the Civil War itself, was ultimately about the right to own slaves. (Click here for a very reasonable exposition of that argument prepared by the National Parks Service.) But people my age, taught that the Civil War was really about states’ rights, tend to think ambivalently about personalities like Jefferson Davis, Robert E. Lee, and Stonewall Jackson. It seems to me that we need to move past that ambivalence as we consider the fate of these statues. The ones mourning the horrific loss of life—and there were almost 300,000 dead on the Confederate side, almost all of them young men—should be maintained as parallel memorials to those dedicated to the dead on the Union side. But those celebrating individuals who led the Confederacy to fight for the right to dismember the union and thus to preserve their right to own slaves should be moved to museums where they can be viewed contemplatively in a context that recalls the past clearly without honoring the individuals themselves. In the end, the debate about these statues will serve a very positive role if it challenges us to renew our commitment to racial equality, to the eradication of race-based discrimination, and to a celebration of national unity. And also to a clearer understanding of what led to the bloodiest of all American conflicts, one that ultimately cost the lives of almost a million of our co-citizens, and how it could possibly have been averted had cooler heads prevailed.