Jubilees and Separation of Church and State

Jubilees and Separation of Church and State

May 9, 2014

Rabbi David Kaufman

This week’s Torah portion, Behar, is almost ideally suited to the Supreme Court’s decision this week concerning prayer at City Council meetings in Greece, New York. I do not say this simply because Leviticus Chapter 25 contains the words:

You shall observe My laws and faithfully keep My rules, that you may live upon the land in security.

These words, if applied to adherence to the US Constitution and Bill of Rights instead of religious doctrine, are the essential mission of the United States Supreme Court. No, instead I refer to the primary topic of this Torah portion, the Jubilee Year and what the Jubilee Year was all about. First, however, let me discuss the Supreme Court decision and its implications and then I will connect it to Jubilees.

Over the years, I have been and continue to become involved in advocacy for the separation of church and state. Reform Jews are particularly strong in their advocacy in that direction and many have expressed concerns about the recent US Supreme Court decision regarding prayers offered at city council meetings in Greece, New York. Such prayers have regularly involved the use of language specific to Christianity and often clearly appear to urge listeners to adhere to Christian beliefs. In fact, one would have to go out of his or her way to deny that Christianity is in fact the established religion of Greece, New York because all such prayers are given by Christians.

As I understand it, a solution was proposed in which it was argued that prayers could be offered as long as they did not advocate for a specific religion or that clergy of other faiths could be brought into Greece from other locales in order to provide diversity. The city challenged this argument which had been upheld by a lower court as a means to counter the de facto establishment of religion and the case went to the Supreme Court which decided in favor of Greece, NY, sending shock waves through the Separation of Church and State advocacy community.

In recent years, the discussion of Separation of Church and State has primarily focused on removing religious influence on state based functions. Essentially, such efforts have promoted the concept of a secular government, a government devoid of religious based action and bias. "Freedom from Religion" has been at the basis of this movement which argues that the basis of the anti-Establishment clause of the US Constitution mandates that view.

It would make sense based on this understanding to ban all official prayers in the context of governmental activities such as city council meetings or proceedings of state or federal legislatures for example. One must question whether or not prayer can ever be devoid of advocacy for a particular kind of faith if not for a particular faith. To argue that generic theistic prayers are acceptable but prayers that are specifically Christian are not would certainly raise concern about the violation of the free exercise clause at a minimum and potentially also the right of Free Speech.

The First Amendment reads:

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. 

Politically, Progressives tend to stress the importance of the anti-Establishment clause, whereas Conservatives tend to stress the importance of the Free Exercise clause. Our Supreme Court currently leans 5-4 Conservative and that almost by itself explains the decision handed down this week, though I will explain in more detail. There are many cases where the two clauses conflict and the case of Greece, New York is certainly one of them.

To over simplify the situation, what happens in Greece, New York regularly appears to violate the establishment clause with regular clearly Christian prayers being offered, while not violating the free exercise clause because every minister chooses his or her own wording for the prayer offered. Whereas the solution proposed by those opposing the City Council's practice would appear to adhere to the anti-establishment directive, preventing a situation in which only Christianity is represented or would violate the free exercise clause by mandating the absence of faith specific language.

In this specific case, the practice of offering a prayer at all was never questioned. The Greece, New York case did not address whether or not such prayers should ever take place, the question before the court was based on the proposed solution and seems to have been about how one may pray rather than being about whether or not one may pray in that context.

To put this general argument into the context of Separation of Church and State specifically, two concerns arise:

1.                 Should there be prayer at state functions? This action clearly violates "separation", but does not necessarily violate "anti-establishment," unless no diversity is present in which case it would appear to do so.

2.                 Should there be restrictions imposed on the religious content of prayers offered? Doing so would appear to violate the Free Exercise clause.

Here's a direct quote from Justice Kennedy's opinion in the Greece, NY case:

To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and sensors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.

This is in accord with the Free Exercise clause, i.e. keeping state out of religion. Telling a minister that he cannot represent his tradition would in fact be state interference in religion and, I would add, which Kennedy does not, in the context of both mandating prayers and requiring basic God language, could functionally in so doing establish Deism as the state religion which would be a violation of the anti-Establishment clause as well.

As I see it, the question for advocates of Separation of Church and State is truly focused on whether or not such prayers should take place at all with the clear understanding that the context of such prayers being offered overwhelmingly or even exclusively by Christian clergy will necessarily promote the establishment of Christianity as the religion of the government.

The fact that it is not within the court's purview to require the council to bring residents of other cities to offer prayers so as to provide diversity and avoid de facto establishment of Christianity as the faith of the city and that the court rightly defends the free exercise of religion does not excuse the fact that without diversity, the existence of prayers of similar nature from a single faith establishes that faith as the government's religion. In other words, the court cannot demand diversity or determine the content of prayers, but neither can it allow the establishment of a government backed religion which is the case in Greece, New York.

This case was about how prayers were offered. It was a Free Exercise case, even though many observers put it in the context of Establishment. The next case will argue that without accommodation for diversity, the allowance for prayer in this type of context is de facto establishment. My belief as both an advocate for the Separation of Church and State and for the Free Exercise of religion, is that in order to follow the US Constitution's directive, a city council will have to either provide diversity, something that the courts cannot and honestly should not mandate that it do, or not hold such prayers at all as such prayers offered without religious diversity necessarily results in establishment, something that the court could in fact demand based upon the anti-Establishment clause.

So how does this all connect to the Jubliee Year? The Jubilee Year was in theory a time of restoration. Land that had been sold would be returned to its original owner, debts would be forgiven, slaves simply declared free. The text tells us, “The land must not be sold beyond reclaim, for the land is Mine; you are but strangers resident with Me,” and “For it is to Me that the Israelites are servants; they are My servants, whom I freed from the land of Egypt.”

The Jubilee Year is about the understanding that things change over the years, that what should be, often is not. It is unquestionably true that it has become traditional for the primary prohibition of the 1^st Amendment to the Constitution to be given lip service while being egregiously violated. There is no doubt that it has been the custom in many places in America for Christian prayers, regularly with a limited range of types of Christianity represented, to be offered at events and meetings held by institutions which in theory should be subject to the both the liberties and their restrictions enunciated in the US Constitution and Bill of Rights.

The argument that custom and tradition makes law is certainly one found within the Jewish tradition. The rabbis of old treated established customs as if they were dictated by Moses at Sinai. But that is precisely where Jubilees comes into play.

The Jubilee Year is about warning us that what should be is not what is, that what has developed over the decades is not necessarily the way things should be, that customs that have developed over time, particularly in regard to the treatment of those with less power by those with more power, should not be allowed to violate the laws upon which they were based.

Sabbatical years, the seventh year, and the Jubilee year, the 50^th year, may have been part of adjusting the calendar to bring the 364 day solar calendar into line with the reality of the cycling of days and seasons. There is no historical evidence that the Israelites ever put the rules of the Jubilee year into practice, e.g. that slaves went free or that land was returned. We have no evidence of that.

What we do know is that the idea that original intent matters in our tradition and that the Torah, unlike later rabbinical tradition, maintained the concept that customs that have developed over time should not be allowed to defeat or obfuscate the original intent of the laws upon which they were based. How much more directly could a Torah portion be in regard to this week’s Torah portion in which Justice Kennedy, offering the majority opinion, quoted an earlier case, Marsh vs. Chambers saying, “the Establishment Clause must be interpreted ‘by references to historical practices and understandings’.” This is, of course, similar to the fact that the concept of “people” in the Constitution not all that long ago did not necessarily include those who by many were deemed less than people, slaves.

No, it is not reasonable to argue that “historical practices and understandings” or customs and traditions have a veto.

All this said, if you wonder whether or not the framers of the US Constitution understood the meaning of the Jubilee year or that it had importance to them, this much is beyond dispute, the words of Leviticus 25:10, from this very Torah portion, are etched on the Liberty Bell:

Proclaim liberty throughout the land unto all the inhabitants thereof.

The words that immediately follow them, “It shall be a Jubilee for you.”

Shabbat Shalom.

Prayer, the Supreme Court, and Separation

Over the years, I have been and continue to become involved in advocacy for the separation of church and state. Reform Jews are particularly strong in their advocacy in that direction and many have expressed concerns about the recent US Supreme Court decision regarding prayers offered at city council meetings in Greece, New York. Such prayers have regularly involved the use of language specific to Christianity and often clearly appear to urge listeners to adhere to Christian beliefs. In fact, one would have to go out of his or her way to deny that Christianity is in fact the established religion of Greece, New York because all such prayers are given by Christians.

As I understand it, a solution was proposed in which it was argued that prayers could be offered as long as they did not advocate for a specific religion or that clergy of other faiths could be brought into Greece from other locales in order to provide diversity. The city challenged this argument which had been upheld by a lower court as a means to counter the de facto establishment of religion and the case went to the Supreme Court which decided in favor of Greece, NY, sending shock waves through the Separation of Church and State advocacy community.

In recent years, the discussion of Separation of Church and State has primarily focused on removing religious influence on state based functions. Essentially, such efforts have promoted the concept of a secular government, a government devoid of religious based action and bias. "Freedom from Religion" has been at the basis of this movement which argues that the basis of the anti-Establishment clause of the US Constitution mandates that view.

It would make sense based on this understanding to ban all official prayers in the context of governmental activities such as city council meetings or proceedings of state or federal legislatures for example. One must question whether or not prayer can ever be devoid of advocacy for a particular kind of faith if not for a particular faith. To argue that generic theistic prayers are acceptable but prayers that are specifically Christian are not would certainly raise concern about the violation of the free exercise clause at a minimum and potentially also the right of Free Speech.

The First Amendment reads:

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. 

Politically, Progressives tend to stress the importance of the anti-Establishment clause, whereas Conservatives tend to stress the importance of the Free Exercise clause. Our Supreme Court currently leans 5-4 Conservative and that almost by itself explains the decision handed down this week, though I will explain in more detail. There are many cases where the two clauses conflict and the case of Greece, New York is certainly one of them.

What happens in Greece, New York regularly appears to violate the establishment clause while not violating the free exercise clause, whereas the solution proposed by those opposing the City Council's practice would appear to adhere to the anti-establishment directive, but would violate the free exercise clause. In other words, in this specific case, which does not address whether or not such prayers should ever take place, the question, based on the proposed solution, seems to have been about how one may pray rather than being about whether or not one may pray in that context. The practice of offering a prayer at all was never questioned.

To put this argument into the context of Separation of Church and State specifically, two concerns arise:

1. Should there be prayer at state functions? This action clearly violates "separation", but does not necessarily violate "anti-establishment," unless no diversity is present in which case it likely does.
2. Should there be restrictions imposed on the religious content of prayers offered? Doing so would appear to violate the Free Exercise clause.

 Here's a direct quote from Justice Kennedy's opinion in the Greece, NY case:

To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and sensors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.

This is in accord with the Free Exercise clause, ie keeping state out of religion. Telling a minister that he cannot represent his tradition would in fact be state interference in religion and, I would add, which Kennedy does not, in the context of both mandating prayers and requiring basic God language, could functionally establish Deism as the state religion which would be a violation of the anti-Establishment clause as well.

As I see it, the question for advocates of Separation of Church and State is truly focused on whether or not such prayers should take place at all with the clear understanding that the context of such prayers being offered overwhelmingly or even exclusively by Christian clergy will promote the establishment of Christianity as the religion of the government.

The fact that it is not within the court's purview to require the council to bring residents of other cities to offer prayers so as to provide diversity and avoid de facto establishment of Christianity as the faith of the city and that the court rightly defends the free exercise of religion does not excuse the fact that without diversity the existence of prayers of similar nature from a single faith establishes that faith as the government's religion. In other words, the court cannot demand diversity or determine the content of prayers, but neither can it allow the establishment of a government backed religion which is the case in Greece, New York.

This case was about how prayers were offered. It was a free exercise case. The next one will argue that without accommodation for diversity, the allowance for prayer in this type of context is de facto establishment. In order to follow the US Constitution's directive, a city council will have to either provide diversity or not have such prayers as the latter without the former necessarily results in establishment.

Zombies in Annie? Yes! This is "Thriller" from our Purimspiel

In our Purimspiel this year, based on Annie, there were Zombies. You really have to see the whole thing to understand how it all worked, but the scene is very funny.

Why You Should Care About Crimea

Those who forget or never learned history are doomed to repeat it.

On September 30, 1938, Neville Chamberlain returned from Berlin and said:

My good friends, for the second time in our history, a British Prime Minister has returned from Germany bringing peace with honour. I believe it is peace for our time. 

We know of course that the wish for "peace for our time" did not come to fruition. Often overlooked is the fact that this was the second time that a British Prime Minister had returned from Germany with such an assurance. The first was Benjamin Disraeli in 1878 returning from the Congress of Berlin. That conference concerned fighting between Russia and the Ottoman Empire. Heavily influenced by German Chancellor Otto Von Bismark and seeking to maintain the interests of Britain and other European nations, the Conference of Berlin created a solution that limited Russia's influence to the west while increasing Austro-Hungarian influence in the Balkans. The failure of the Conference of Berlin to achieve a complete solution to the problems in the Balkans and differences between the nations of Europe, the Ottoman Empire, and Russia eventually led to World War I and one could argue continued in part with World War II. Even the Cold War could be seen as being based upon this conflict. But it did not begin in 1878 with the Russo-Turkish War. It began with the Crimean War.

During the Crimean War of 1853-1856, Russia lost to an alliance of France, Britain, the Ottoman Empire and Sardinia, aided by an ostensibly neutral but functionally allied Austria. The focus of the conflict was on the rights of Christians in the Ottoman controlled Holy Land. The French promoted the Catholics. The Russians the Orthodox. Meanwhile Britain and Austria were primarily concerned with keeping the Ottoman Empire alive so as to limit the growth of Russia. Fighting began with Russia destroying the Ottoman fleet in 1853 and finally ended when Russian allied Sevastopol fell in 1856.

Today, Sevastopol is considered by many to be a Russian city within Ukrainian borders. It is a focal point in the ongoing civil strife in the Ukraine. Concerns grow that Russia may use force, perhaps even invade, in order to protect its allied citizenry in the Ukraine and particularly in Sevastopol. Additionally, the Russian navy maintains a major naval base there with a lease expiring in 2042. 15,000 Russian naval troops and support personnel are stationed there.

This conflict did not begin this month or last or last year or last decade. It didn't begin with the fall of the Soviet Union or the aftermath of World War II. It wasn't created by the events of World War I either. This conflict between Europe and Russia in the Crimea has been ongoing since 1853. It isn't a matter of Russian meddling in a neighboring country as much as it is truly about internal conflict within it.

Ukraine is a nation of divided identity. For the country to be maintained as a single nation, it will need to respect its dual nature. If it cannot do that successfully, history tells us that violence is all but guaranteed. Russia is poised to act in its best interests. It is more than questionable as to whether or not European nations along with the United States are prepared to respond as they have for the past 161 years. What is at stake is the same thing that has been at stake throughout that time, the balance of power between East and West and the security of Europe or lack thereof which is dependent upon it.

My Version of the Classic Sea of Reeds Joke

Mother: “What did you learn in Religious School today?”

Child: “I learned about the crossing of the sea in the Exodus story.”

Mother: “Tell me the story?”

Child: Well, when the Israelites came to the shores of the sea they saw that the Egyptian army was closing in on them. So Moses posted a Tweet and then updated his Facebook status asking for reinforcements and soon thereafter a fleet of drones appeared and attacked the Egyptian army, holding them off. That gave the Israelites time to build a pontoon bridge across the sea. As soon as the Israelites had finished crossing, Miriam and the women danced, taunting the Egyptians. I don't think they were twerking, but it was pretty offensive, I guess. The Egyptians got angry and stormed across the bridge, but Moses and the Israelites used remote detonators to blow it up before they could reach the Israelite’s side. The Egyptians couldn’t swim and there were crocodiles. It wasn’t pretty.”

Mother: “Is that really what they taught you?”

Child: “Well…not exactly, but if I told you what they really taught me, you’d never believe it!”

Thanks and Not Enough

On Monday at 1 pm Central Time, I will be attending two very different funerals. One I will attend in person. One I will attend in spirit. Both are for wonderful human beings who had a tremendous impact on all who knew them.

In Des Moines, I will officiate at the funeral of Dr. Henry Corn. Recently turning 102 years old, Dr. Corn was a pediatrician who began his practice before there were antibiotics.  He brought health and joy into the lives of thousands of people over decades. No one ever heard him complain. Every time I visited, he said "Thank you" including on his last day right after I offered the Priestly Benediction.

A life of shalom. Completion.
Thanks and thanks and thanks.

At the moment that I help celebrate his long life another much shorter life will be celebrated a few hours drive away in Chicago. I will be there too with Phyllis and Michael Sommer, with their family, with their friends, with my rabbinical colleagues,  with medical providers, with angels. Tears and tears. Smiles for happy times. More tears. More and more.

EIGHT years! Superman Sam was so bright for those eight years! Thank you. Thank you. But not " Dayeinu." Not that. Not enough. Not enough at all.

Two very different lives. Two very different funerals. I will be at both of their funerals with tears for both lives lost. Celebrating life. Mourning that it is simply never enough. Not 102 years, but certainly not eight.

Again I wrestle with God this today. I wrestle with nature and life. This is Judaism. It and we as part of it, do not hide from life. We are Jews. We say "dayeinu" knowing that it never was and never will be enough for us.

Thanks, but not enough. Not enough at all.

May shalom come.

Maccagawea and the Thanksgivukkah Miracle

Was it a couple of millennia ago in the land of Israel, maybe a couple of hundred years ago in 1804 in the Northwestern Territory, or perhaps on a fall day in 1621 in New England, a woman from the SheineSheine family named Maccagawea [pronounced Mac-a-Jew-ee-oy because while in the northeast it would have ended "er" in the northwest it's "oy"] helped lead her people to victory over those who had determined that the biggest shopping day of the year should always precede Chanukah. Maccagawea prayed to God and filed suit to move the holiday so that the Jewish people could have the two Thanksgiving turkey drumsticks hold the Chanukah candles for the second night while allowing the people to use the turkey neck, often heretofore disposed of without use, to be used with the Shamash candle.  Miracle of miracles, it was made so, but because of scheduling problems only happens every 70,000 years or so.

Because of Maccagawea, this year Jews around the world will be getting great discounts and even door busters during Chanukah! 

In celebration of this great miracle, the Governor of the colony who was not named Antiochus and the Chief of the Wampamberg tribe, Squanto (the q is pronounced like “ch” in Bach), decided that the people should hold a great feast when the calendars align properly, light candles, and sing songs about gambling with spinning tops called dreidels while eating far too much and watching football.

For the Thanksgivukkah day meal eaten on the occasion of the confluence of the holidays of Thanksgiving and Chanukah, some say that it is customary to make Gefilte Fish out of Cape Cod and eat potato latkes with cranberry sauce.

We owe it all one heroic woman, Maccagawea. 

Maccagawea is also known for saying that 

April Showers bring Mayflowers.

 Happy Thanksgivukkah!!!