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Sinai and Philadelphia - do they still matter?

07/01/2022 07:27:08 AM


Then Amos replied to Amaziah, "I am not a prophet, nor am I the son of a prophet; for I am a herdsman and a grower of sycamore figs.”  (Amos 7:14)

Well, I am not a legal scholar, nor am I the son of a legal scholar, but it appears that the left’s legal strategies have yielded a terrible harvest. I remember so very fondly the waning days of June, 2015 when I and a group of other Keshet volunteers were building our Chuppah-mobile for the upcoming Pride Parade and the Obergefell decision came down. The decision marked a civil rights victory far too long in coming, forever legalizing something that never should have been forbidden in the first place — same sex marriage and all the incumbent rights with which married couples are bestowed.  I treasure the memory of that moment and the celebrations which followed, one of the best in all my years as a rabbi.   

(A lechayim for Obergefell: Pride, 2015)

I don’t remember the moments of the Lawrence, or Roe, or Loving decisions – I was too young or not even born yet– but I always believed that for the government to govern what folks do with their own bodies in their own spaces is an attack on patently obvious, divinely guaranteed, inalienable rights.  I furthermore felt certain that it shouldn’t be left up to any governing body to adjudicate those rights except for the highest in the land. 

I come to this article with a bit of trepidation because I am not a legal scholar. And I am so very disappointed in our system and especially in our leaders on the left. I had been taught, I had read, I had learned, that a Supreme Court decision is, by precedent, the law of the land. I was clearly naïve. Not that I didn’t understand that precedents can be overturned. Of course they can, and thank God for that. Thank God that integration, sexual intimacy, fair trial proceedings, and “inter-racial” marriage, among others, were deemed legal through exactly this process of over-turning earlier myopic, racist, sexist, and often puritanical decisions by previous courts. No, I understood this. What I didn’t understand was the relative ease with which the good decisions could be overturned as well. And why? Mostly, probably, because we weren’t paying enough attention. 

With eyes wide open, one wonders why, during the few periods since 1972, when the Democrats held a unified government in the House, the Senate, and the White House, why THEY wouldn’t have enshrined these hard-fought wins as national law. Aren’t equal access to education, love, intimacy, and opportunity essential elements of what our Constitution guarantees: Life, Liberty, and Pursuit of Happiness? For that matter, why wouldn’t Republican unified governments, or a combination not have pursued this? I could blame it on “them,” but it’s probably because WE weren’t demanding it.

As Liberal Jews, we should be very careful with the notion of stari decisis, the legal principle of determining points in litigation according to precedent.  Our very legitimacy is predicated upon the notion that laws, or at least norms, by which we abide, can fundamentally transform, and we can nonetheless remain connected to Sinai. As Liberal Jews, we understand the sanctity of tradition, balanced by the need to move forward to ensure that the spirit of the law animates our Judaism, even if not the letter. There are no documents, even Divinely inspired ones, that can remain stagnant and yet meaningfully applicable eons after they were written. Again, I am not a prophet, but the prophetic vision runs through me, and I will prophesy that even God understands that. The Torah itself is not a completed document in the sense that it has been edited and corrected for the purpose of narrative clarity. Seeming omissions and repetitions and inconsistencies in the text are preserved not because of veneration, but because this very “imperfect” format invites us into dialogue and connection with the text and with each other. And so too must our sacred American documents be seen in this way: Originalism is a theory wielded by those in the majority who get to declare what was originally intended. This is as true for religion as it is for the legal world. If a sacred document is to live and instill relevance in every age, it is precisely because the wisdom it sheds can address every new moment to come – meaningfully, inspirationally, and most importantly, fairly. Otherwise, liminal moments such as Sinai and the Constitutional Convention will die on the vine and fig trees promised to us.

I don’t know exactly what is driving this movement against freedom and fairness and equal protection, but we are inheriting the wind of blowhards and town criers and it's time to push back.

Mon, February 26 2024 17 Adar I 5784