Why Jews Can't Be Conservative

 

By
Gidon D. Remba

 

With the rise of George W. Bush to the presidency, Jewish Republicans have challenged American Jews, who have overwhelmingly voted Democratic and remain politically liberal, to explain how they reconcile liberalism with Jewish values on such questions as the Arab-Israel conflict, the Gulf War—then and now—abortion, same-sex marriage, gun ownership, affirmative action, and the separation of church and state.  Is Republicanism simply another legitimate way to reconcile American ideals with Jewish commitments, as they suggest?   Can we faithfully marry the project of tikkun olam with the ethos of the Right, as the Jewish burning Bushies profess?  The conservative creed is often inspired not so much by authentic Jewish values, but by a decadent picture of Jewish self-interest.  American Jews should ask whether a policy is “good for the Jews,” but can this be the only, or even the main, criterion for choice?   And when values are invoked, Jewish conservatives rarely question whether their politics withstand moral scrutiny, or reflect the best interests of American society, the Jewish community or Israel.  Jewish progressives must respect the rights of Jewish conservatives to free expression.  But moral tolerance for a vision of American Jewish life which breeds both grievous mischief and injustice is sheer folly.  Jews can’t be conservative Republicans and remain true to themselves.  Here’s why. 

 

Resisting the Holocaust and Guns in America

 

Consider Dennis Prager’s gambit on gun ownership:  “Given the inability of most Jews in Europe to defend themselves against those who rounded them up for shipment to concentration and death camps, why is it axiomatic that a good Jew opposes widespread gun ownership?  If the Jews of Europe had been armed, the death toll of the Holocaust would not have been anywhere near what it was.” (Moment, Feb. 2001)  I grant that we should favor extensive gun ownership for Jews and other citizens living in a society like pre-World War II Germany.  The Weimar Republic was a new and fragile democratic experiment, with shallow roots in a land where weeds of ultra-nationalism and anti-Semitism grew wild, and public experience with liberal democracy and equal citizenship meager.  Precisely the opposite is true of the United States:  despite its gaping flaws, it remains after more than two hundred years a stable democracy, with strong, if imperfect, democratic institutions and a well-entrenched public commitment to most constitutional rights for citizens. Anti-Semitism in America has long ebbed, despite a temporary upsurge in anti-Jewish assaults in the U.S. during the new intifada.   Nor is America, a multicultural melange of immigrants, burdened with a history of ethnic nationalism in the twentieth century like Germany, the rest of Europe and the Middle East.  Why then does Prager encourage widespread gun ownership in this country in light of the Nazi regime’s extermination of European Jewry?   Is there even a gambler’s chance the U.S. Government will turn fascist and herd Jews into camps?   The only Americans who think pervasive gun ownership is justified by such fears are the paranoid white supremacist, anti-Semitic militias. 

 

Why then invoke—or exploit—the Holocaust to argue social policy in America?  A rhetorical appeal to the Shoah plays on Jewish feelings of outrage and impotence, in the hope of channeling them into enthusiasm for guns and hostility to gun control.  Whether Jews should welcome widespread gun ownership has nothing to do with the Holocaust and should be decided on radically different grounds than those suggested by Prager.   Jews and all Americans should be troubled with the high incidence of gun violence in our culture, fueled by the easy availability of weapons and resistance to reasonable gun regulation from special interest lobbies like the National Rifle Association, the darling of conservative Republicans.  Guns kept in the home for self-protection are twenty-two times more likely to be used to kill someone you know than in self-defense against intruders, according to a 1998 study by the New England Journal of Medicine.  They drastically increase the likelihood of accidental death and injury to children and other family members.  Public health data suggest that “within five years, firearms are expected to overtake motor vehicle accidents as the leading cause of death among American children.”  And the Centers for Disease Control report that “the rate of firearm death of children 1-14 years old is nearly twelve times higher in the U.S. than in 25 other industrialized nations combined.” (www.handguncontrol.org)   Jews ought to weigh the desirability of guns not on the scales of absurdly improbable scenarios from our historical experience in other lands and past eras, but by asking whether the unbridled proliferation of firearms is good for American society, or permitted by the best understanding of our Constitution.  On both counts, the conservative Republican catechism is highly questionable.  In this case, as in many others, being responsible Americans is good for the Jews.

 

Decadent Justice:  Blacks, Jews, and Deserving Preferences

 

As a cage is full of birds, so their houses are full of guile; that is why they have grown so wealthy. They have become fat and sleek. They judge not with justice, the cause of the orphan. They do not defend the rights of the needy…Your father ate and drank and dispensed justice and equity—Then all went well with him. He upheld the rights of the poor and the needy—Then all was well. That is truly heeding Me, says the Lord.
Jeremiah 5:27-28; 22:15-16

 

Seek justice, undo oppression.

Isaiah I: 17 (Abraham Joshua Heschel translation, The Prophets)

 

Affirmative action is designed to redress the harms caused to groups who have suffered long discrimination in this country, preventing them from enjoying genuine equal opportunity.  American Jews are, by and large, successful and affluent.  We do not face the limits to opportunity which endemic poverty and past oppression often continue to impose on black Americans and others.  What’s best for America, and what justice demands, does not always favor a narrow construction of Jewish self-interest.  A fair solution, supported by Jewish concepts of social justice, embraces a race-conscious helping hand designed to offset race-based handicaps at the starting gate.  One can’t equate the quotas which once served to keep many Jews out of premier educational institutions and careers, to hoard the spoils of social advantage for gentiles and exclude a shunned religious group, with measures designed to provide a fair and inclusive chance for all.  The knife that cuts to wound is not the knife that cuts to heal in the surgeon’s hand.  Most Jewish organizations have consistently supported preferential college admissions and hiring for disadvantaged minorities, so long as these are governed by the goal of inclusion without employing rigid numerical quotas.  So has the Supreme Court, in the Bakke case (1978).  Even among those moderate Americans who reject targets linked to race, there are many who endorse need-based preferences, which will inevitably help most minorities, without excluding needy Jews or other impoverished white people.

 

Yitzhak Rabin advocated affirmative action for the Sephardic Jews of Israel to help overcome their social and economic disabilities and level the playing field.  In fact, Israel’s Law of Return is sometimes defended as a form of affirmative action for Jews.  Israel’s Declaration of Independence and its emerging constitution (the Basic Laws) promise to ensure the civic rights of all its citizens.  How then is it legitimate for Israel, as a democratic state, to restrict immigration mainly to Jews?  Israel was founded to express the right to national self-determination of the Jewish people.  While Jews are entitled to a nation-state like any other, our history of persecution, the persistent failure of other countries to open their doors to Jews in distress, and the continuing threat of anti-Semitism, reinforce the case for righting the historical injustice in the one place where Jews must have the privilege of preferential immigration.  

 

Rabbi Hillel summed up the Torah in this supreme commandment:  “What is hateful to you do not do to your neighbor:  that is the entire Torah; the rest is commentary; go and learn it.” (Babylonian Talmud, Shabbat 31a)   If American Jews had been unable to overcome a legacy of persecution, penury and prejudice, blocked from fully entering the mainstream of American society, would we consent to social arrangements which perpetuated our second-class status?  Would we consider the competition for coveted social positions to be truly free and fair if it simply left intact our subordinate starting point with no compensating adjustments?  Jewish conservatives champion color-blind selection because they are fortunate enough to be members of a group which fares well under its umbrella, not because it passes any test of moral reciprocity, as the Torah demands.  They adopt it because it is good for them, not because it satisfies any respectable notion of the common good or a disinterested balancing of liberty and equity. 

 

Decadent Justice II:  Clinton, Bush, Gore and the Private as Public

 

God commands us to “appoint magistrates and officials…and they shall govern the people with due justice.  You shall not judge unfairly:  you shall show no partiality.”  (Deuteronomy, 16: 18-19)   We need only consider how Florida Secretary of State Catherine Harris or the Republican-dominated U.S. Supreme Court played ringmasters in the Bush-Gore circus maximus to be reminded of officials who would not have acted as they did had the tables been turned and had the lofty principles they cited worked to their candidate’s detriment.  Conservative judges on the highest court in the land failed to offer the public a Constitutionally faithful procedure for deciding the outcome of the 2000 presidential election which could have been accepted by fair-minded observers on both sides as anchored in the rule of law, despite the availability and aptness of just such a judicious solution.  Paul Starr, like so many other historians and legal scholars of all political persuasions, charges these jurists with a “betrayal of our trust” in the independence of the courts from politics:  “The five justices in the majority discarded any semblance of judicial restraint, abandoned their own principles of states' rights, failed to devise even a minimally persuasive constitutional basis for their ruling, and intervened in the political process with the unprecedented effect of determining the next president…The Court's termination of the recount had no basis in the law…Yet the decision wasn't just partisan; it was also self-interested.”  By effectively awarding Bush the election and making it likely that the next justices appointed by the President would be conservative, “the five justices in the majority acted in their own long-term self-interest, ensuring that their side will continue to dominate the Court.”  (American Prospect, January 1, 2001.)   “They … made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of…these four vain men and one vain woman,” wrote Jeffrey Rosen in The New Republic (“Disgrace,” Dec. 25, 2000). 

 

Even honest conservative legal scholars have found the ruling, and the stay which stopped the state-wide manual count of undervotes in Florida, completely indefensible.  The Nation reports that “Terrance Sandlow, former dean of the University of Michigan Law School,…who opposed Roe v. Wade and supported the nomination of right-wing icon Robert Bork, said that the ‘balance of harms so unmistakably were on the side of Gore’ that the granting of the stay was ‘incomprehensible,’ going on to call the stay ‘an unmistakably partisan decision without any foundation in the law.” (“None Dare Call It Treason,” February 5, 2001)  The dissenting justices themselves could barely contain their indignation:  this “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”   “Republican justice” has become an embarrassing oxymoron.  In the wake of such feckless conduct by “conservatives” entrusted with vital institutions of our democracy—administering the balloting in the linchpin state of a national election and crafting the decisive ruling from the summit of the judicial system—it is hard to imagine how anyone who heeds the biblical injunction to seek justice and pursue righteousness can entertain a philosophy whose practice has become so closely associated with the corruption of high principle in the name of political opportunism and naked power.   Conservative Republican officials and magistrates have willfully abdicated their most sublime constitutional and moral duties; and what’s worse, they see no problem in this. “Woe to those who call evil good, and good evil,  who put darkness for light, and light for darkness.”  (Isaiah 5:20) 

 

It is unsurprising that many of the votes never counted in Florida were those of Jews, blacks and others who were inclined to vote Democratic.  The darkest irony of ironies is that the Court’s refusal to allow their votes to be counted was based on an arbitrary and capricious application of the Constitution’s equal protection guarantee, a provision that was enacted specifically to protect blacks from racial discrimination and exclusion, whose roots lie in Jewish ethics and law.  If the Court’s majority were truly committed to ensuring equal protection under the law, and ensuring that every legally cast vote was tabulated, it would have established a uniform standard for counting the undervotes, or ordered the Florida Supreme Court to do so, which on finding justified a challenge to the certified results of an election had the power under Florida’s Election Code to “provide any relief appropriate under the circumstances.”  Its reliance on equal protection was even more inconsistent and disingenuous in light of the fact that the percentage of votes not detected in counties using the punch card system was 3.92 percent, whereas the rate in counties using the more accurate optical scanning machines was only 1.43 percent.   This meant, as The Nation and The New York Times observed (Dec. 1, 2000), that “for every 10,000 votes cast, the punch-card system resulted in 250 more nonvotes than the optical-scan system.”   In a state where Bush’s entire lead was a few hundred, accurately tallying the undervotes from the six million statewide ballots, as the Florida Supreme Court had ordered, clearly could have affected the outcome, very probably changing the result, as it had in other election contests in Florida and many states across the nation.   

 

The impeachment of President Clinton by a Republican-controlled Congress for a lie he told to protect his privacy and spare himself and his family embarrassment over a personal indiscretion—one which then Republican House Speaker Bob Livingston and chief inquisitor Congressman Henry Hyde had themselves committed, adultery—further illustrates the new low to which Republicans have sunk to gain political advantage.  By contrast, when President Nixon resigned, most Republicans and Democrats agreed he had committed impeachable offenses, unlawful acts involving abuses of presidential power in the conduct of the duties of his office, which he then covered up with further illegal actions—not, as with Clinton, private immoral behavior, and false testimony in a civil trial completely unrelated to his presidential duties (mendacity which was also deemed by the trial judge entirely immaterial to the Paula Jones case, which she dismissed as “lacking in merit”!).  Whereas the Nixon impeachment hearings led to a broad bipartisan consensus over his crimes, leaving him with the Hobson’s choice of resigning or facing probable conviction, the Clinton impeachment was almost entirely a partisan Republican crusade which failed as law, since he was acquitted, and rightly so, but succeeded as politics, since it was leveraged by Bush against Gore to impugn his character through guilt by association.   The parallel between the Clinton impeachment and the Bush electoral larceny has passed, remarkably, unremarked. As E. L. Doctorow noticed, the Clinton impeachment represented a Republican “conflation of church and state,” an illicit transformation of the private into the public:  “The alleged crime of Bill Clinton, perjury, did not occur until he was questioned under oath.  Adulterous behavior may be a sin, but it is not a crime.  On the other hand, if you can bring someone into a courtroom to equivocate about it, it is convertible to a crime.  All you need is a sinner and a suit.  If you happen to be a prosecutor with a righteous bent, you can transform what morally offends you into a criminal offense.”   The coronation of Bush by a 5-4 party-line majority of the Supreme Court represented the usurpation of the public by the private appetites of political partisans in robes.  Who is to say which sating of gluttonous desire is more obscene?   In either case, we witnessed a rapacious Republican conquest of our collective civic life by an omnivorous lust which made Bill Clinton’s sexual urges seem downright feeble.

 

Vice President Dick Cheney and other conservatives have openly confessed that they and the Bush Administration resist real campaign finance reform because it would weaken the Republican party.  Such reform would neutralize the unseemly influence of wealth and powerful special interests on the legislative and electoral process by publicly financing elections, or at least banning soft money, restoring integrity to politics, and reinvigorating the public’s participation in our democracy.  To most Republican patriots, these are trifling benefits.  The politics of self-interest triumph once again over the public interest.  Since counting all the ballots in Florida would apparently have weakened the Republicans as well—by very probably denying them the presidency—the party has now set itself up as the antagonist to fair democratic elections (unless they take place in a foreign country).  A party which can only maintain its hold on power by overriding the will of the electorate, by buying political influence, short circuiting vote counting and peddling sexual scandal—distracting the public with bread and circuses—is one which is interested in the hegemony of an aristocratic elite, rather than the good of the people.  Conservatism, narcissism and the eclipse of impartial moral judgment have become inextricably linked.  Far from representing one among a variety of plausible moral positions, conservatism constitutes a fundamental repudiation of the moral point of view, a gift of Judaism to Western civilization.  It is not merely current conservative practice, but the theory itself which is morally bankrupt.  Conservative loathing for affirmative action from self-serving motives is but one manifestation of a more pervasive decadence.   None of this is meant to suggest that Clinton and the Democrats are angels; but there are many rungs in hell, as there are on the way to heaven.

 

Abortion, Gay Rights and Church-State Separation

 

Liberal Jews do not endorse abortion “at any time during pregnancy for any reason,” as Prager suggests in a “straw man” caricature.  They take care to distinguish what is legally permissible from what is morally desirable:  being pro-choice does not entail being pro-abortion.    They do affirm Roe v. Wade, which prevents states from outlawing abortion only through the second trimester, while allowing bans in the third trimester except when pregnancy threatens the life or health of the mother.  The decision should be left to a pregnant woman and her doctor, not to the government, a view very much embedded in Jewish halachic norms.  The rabbinic principle of tza'ara d'gufah kadim expresses the primacy of the woman's welfare and avoidance of pain, which may be understood to include emotional anguish or risk to the mother's mental health.  Even in more recent rulings, the Supreme Court has repeatedly stressed that the health of the mother is a medical judgment that "may be exercised in light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient.”  Liberal Jews stand for a responsible liberty, not unbounded license.   In rabbinic Judaism, the embryo is 'not a person' (lav nefesh hu) until it is born.  The fetus is considered 'part of its mother,' ubbar yerekh immo, rather than an independent entity.  The Talmud regards the embryo during much of the first trimester as “simply water.”  (Babylonian Talmud, Sanhedrin 72b, Hullin 58a, Yevamot 69b.)   In this instance, the wisdom of ancient Jewish law, viewed as midrashic metaphor, presciently and uncannily mirrors modern embryology: during the first (and possibly part of the second) trimester the fetus is not yet sufficiently developed to experience pain or sensation; nor is it viable, capable of surviving outside the womb until the end of the second trimester. To the rabbinic eye, it is more like water than person in its first months.  Over 90% of abortions in the U.S. occur during the first trimester, with another 9% during the second.  Judaism offers little basis for treating abortion as murder, the unjustified killing of a moral or legal person  (see also Exodus 21:22-25).  Calling the fetus “nascent human life,” as Prager and Catholic abortion foes do, obscures the continental divide between Judaism and Catholicism on this question. (See David Feldman, Marital Relations, Birth Control and Abortion in Jewish Law, Shocken, 1974,  and his essay in Elliot N. Dorff and Louis E. Newman, eds., Contemporary Jewish Ethics and Morality:  A Reader, Oxford, 1995; Elliot N. Dorff, Matters of Life and Death: A Jewish Approach to Modern Medical Ethics, Jewish Publication Society, 1998). 

 

There is no cogent moral argument for equating abortion at all stages of fetal development with murder which does not covertly rely on the metaphysical belief that the human egg is endowed by God with a soul at the time of fertilization.  It is true that when the ovum is fertilized, a genetically unique individual human being is first formed which will usually develop through a natural course into a normal person.  But the biological difference between the sperm and unfertilized ovum, and the zygote which flows from their union, is so much less dramatic than the difference between a sentient, fully formed six-month old fetus and an undifferentiated zygote smaller than a punctuation mark on this page, that it is arbitrary and irrational to insist that fertilization is a magical threshold for the sudden possession of the full-blown right to life of a moral and legal person.  Why should the privileges of moral standing not be acquired gradually and in degrees just as the natural capacities which underlie elementary human functioning develop over time?  That’s why outlawing abortion on the claim that the fertilized ovum, from the moment of conception, deserves protection as a full-fledged legal person would be to use the law to impose Catholic “ensoulment” theology by stealth on all Americans, effectively establishing a state religion in violation of our Constitution.  

 

President George W. Bush need not declare a National Jesus Day to breach the First Amendment to our Constitution.  It will be enough if his administration rescinds the FDA’s approval of the “morning after” abortion drug RU-486 or restricts its availability without any scientific or medical evidence that it is unsafe to the health of pregnant women, or bans the National Institute of Health from financing embryonic stem cell research to find cures for diabetes and degenerative brain disorders like Alzheimer’s, Parkinson’s and Huntington’s.  Bush has inveighed against such research, which works with cells from the unused fertilized eggs of couples pursuing in vitro fertilization.  So even though I and my wife, who are now undergoing fertility treatment, agree that the clinic may donate our unused fertilized eggs to promote research to save the lives of others, based on our faithful understanding of Jewish tradition, President Bush seems poised to cut off the federal funding which makes it possible, because he believes it immorally destroys a human life.  (NY Times, Jan. 20, 2001)  In view of the tapestry of moral and religious beliefs in America, those who choose to donate their eggs for such purposes should be allowed to do so, while those who object should refrain.  Given that the Supreme Court has consistently held that a first trimester embryo has no legal right to life, since this, as Attorney General John Ashcroft reminds us, is “settled law,” Catholics who believe that their own embryos are ensouled have no cause for protesting the use of taxes collected from us all to fund medical research using cells from embryos which have no legal standing (and whose donors believe are not moral persons.)   Their covert purpose, along with Bush’s, can only be to enshrine Catholic moral theology into coercive law for all Americans.   This, on even the most minimalist reading of the First Amendment, is exactly what the separation of church and state is meant to prevent. 

 

When Bush has the chance to nominate a new Supreme Court justice in the mold of Antonin Scalia or Clarence Thomas, who would overturn or further erode Roe v. Wade, a new and grievous blow will be struck against religious freedom in America, making a travesty of John Ashcroft’s solemn oath to respect the constitutional right to reproductive choice, and to uphold the law of the land, regardless of his fundamentalist Christian credo.  Bush wasted no time moving in just that direction by marking the 28^th anniversary of Roe v. Wade, also his first business day in office, issuing an order to withhold federal aid to groups providing abortion counseling overseas.  So while Ashcroft assured us that Roe is settled law, which the Bush Administration would not seek to overrule, Bush himself was busy announcing that “The promises of our Declaration of Independence”—the rights to life and liberty—“are not just for the strong, the independent or the healthy.  They are for everyone—including unborn children.” (NY Times, Jan. 23, 2001)  If a woman’s right to reproductive choice takes precedence under the Constitution over right-to-life claims for the first or second trimester fetus, on what grounds does President Bush propose that the right to life should now trump a woman’s freedom to choose?  Welcome, my fellow Americans, to Jesus Day.  For now, of course, the proclamation won’t be overt; at least not so blatant as it was at the Bush Inauguration when Jesus was invoked with abandon as “our Lord and savior” in what is meant to be a public ceremony for all Americans.    It will be insidious, wrapping itself when possible in the guise of an innocuous-seeming American civil religion, or cynically appropriating the language of human rights.   Bush’s statement read to a rally of abortion foes at the Washington Monument on the day of the overseas funds ban, preaches “affirming that every person and every stage and season of life is created equally in the image of God.” (NY Times, Jan. 23, 2001)   This flagrantly begs the question.  Americans of different faiths don’t disagree that all human beings are equally created in the image of God.  They differ over whether every human being, at every stage of existence, is a moral person with the same bulwark of rights. 

 

When the Supreme Court ruled and reaffirmed that fetal viability outside the womb was the most reasonable standard on which to mark the line for legal purposes, it was not enshrining Jewish or Catholic morals or theology into law.  It  was a profound recognition that on questions where the religious and moral beliefs of Americans sharply diverge, decisions must be left to each individual according to her own tradition and conscience.   Where there is wide and deep dissension over morals, arising from incommensurable moral theologies, it is the heart of the quintessentially American ideals of pluralism, tolerance and freedom from religious coercion for such matters to be deemed essentially private.  To return the decision to the state legislatures, as conservatives propose, is only to reproduce the problem on another plane, multiplied fifty-fold:  now state laws motivated by disputed religious metaphysics will improperly coerce—as they once did in the Texas law that Roe struck down.   It is a gross mistake to see Roe as a victory of corrosive secular individualism:  it is, rather, the triumph of respect for the autonomy of religion from the state.  That’s why Jeffrey Rosen is dead wrong when he compares the illegitimacy of the Supreme Court’s judicial fiat in Bush v. Gore with its interpretive vision in Roe v. Wade.   It is a bittersweet irony for the author of The Unwanted Gaze: The Destruction of Privacy in America—who adorns his volume with a medieval rabbinic epigram evoking the damage done to dignity by undue intrusions into private space, hezzek re’iyyah—to have missed so crucial a feature of its erosion.  For the highest elected official of the United States, who represents all Americans, to run roughshod over the pluralism of American religious beliefs, to use the power of his office to advance one particular moral theology through the force of law, is a rank desertion of his constitutional responsibility.  Every day that the President insinuates his private faith into terrestrial power, through executive orders, legislation and judicial motions in the highest courts of the land—power which we the people have collectively invested in him—will be Jesus Day in America.   Such overreaching is doubly offensive, for the people did not, in truth, elect him; he was installed under the cover of law by a court which abused its authority. 

 

Posting the Ten Commandments in public buildings like courts and schools also betrays state favoritism for some religions over others, flouting the constitutional ban against establishment of any particular faiths.  It fails even by Prager’s own definition of the prohibition against state religion.  Surely America can foster the common moral precepts shared by all civilized people without running afoul of our cherished liberties.  Prager suggests that “the most irreligious founder of our country would have found the idea of not posting the Ten Commandments in American schools incomprehensible.”  What the founders meant to exclude by church-state separation hardly settles things.  The same founders often saw no inconsistency between the Constitution’s promise of political equality, and slavery or the denial of suffrage to women.   Our understanding of the American ideals of equality and liberty have progressed dramatically since the eighteenth century.  After generations of immigration from every continent, the religious composition of our population has become far more diverse than it was in Jefferson and Madison’s day.   Even the rabbis of the Talmud recognized that changed social and historical conditions may call for new interpretations of biblical law, which they regarded as implicit in the original meaning of the commandments revealed to Moses.  If the rabbis can faithfully reinterpret the word of God in the Torah for unforeseen places, times and circumstances, and in response to advances in our moral understanding, why should we be barred from doing so with the language of the Constitution?   How much the more so since the Constitution, unlike the Torah, rests on the consent of “we the people.” 

 

When the Vermont Supreme Court unanimously ruled that the state must not condone denial of benefits to same-sex domestic partnerships (with respect to taxes, health insurance, adoption and other social goods that the state normally regulates), it did so because its constitution requires equal protection under the law.   The preference of most Jews, and other believers, for a traditional “nuclear family” does not authorize us to deny basic legal rights to a minority whose sexual orientation is different from our own.  The morals of the majority must yield to the supremacy of our constitutional values in public life.  Even those of us who, as American Jews, find in religious values a wellspring for our political commitments must grant that liberal democracy requires sharp distinctions between the norms of public legality, which are incumbent on all citizens, and private religious morality and custom, where diversity and pluralism nourish the richness of our community life.   This separation is not entirely a modern idea; it has a deep historical source in Jewish law, which fenced off civil and economic matters from religious affairs.  In the former domain, the rabbis held that “the law of the kingdom is law” (dina de-malkhuta dina), even if it conflicted with din Torah, religious law.  (Babylonian Talmud, Bava Kama 113a-b)   Consider Samuel ben Meir, the Rashbam:  “All taxes, rates, and rules of kings’ law commonly established in their kingdoms are…perfectly valid law.” (Babylonian Talmud, Bava Batra 54b)   Another rabbinic commentator held that “just as God established the rule of the kingdoms in His world, He also subjected people’s property to the rule [of these kingdoms] according to their will.”  (See Michael Walzer, Menachem Lorberbaum, Noam J. Zohar and Yair Lorberbaum, eds., The Jewish Political Tradition: Volume One: Authority, Yale, 2000, pp. 436-7, 424-462.)   So even if it were true that Judaism and Jewish custom disdain homosexuality and forbid same-sex marriage, Jewish law itself provides us warrant for honoring the civil norms of the constitutional state in allocating economic and other public benefits equitably and without discrimination between same-sex and heterosexual partnerships. 

 

The Gulf War and Israel:  Saddam’s Weapons of Mass Destruction

 

You find that the Holy One, blessed by He, negated His edict for the sake of peace.  When? At the moment that the Holy One said to Moses: ‘When you besieged a city a long time’ [Deut. 20:19], the Holy One told him to destroy them…But Moses did not do so, but said, ‘Shall I now go and smite he that has sinned and he that has not sinned?  Rather, I shall come to them in peace.’ … [Only] when the enemy did not come in peace, he beat them.  The Holy One blessed be He said:  “I said, ‘You shall utterly destroy them’ [Deut. 20:17], and you [at first] did not do so. By your life, as you said, so shall I, as is said:  ‘When you approach a city to attack it, you shall [first] offer it terms of peace.’” [Deut. 20:10]

Midrash Tanhuma (Zav, Ch. 3)

 

How does a pro-Israel Democrat reconcile his concern for Israel’s security with his party’s opposition to the Persian Gulf War, asks Prager?   The question masks a false and misleading premise.  Most Democrats—myself included, in a New York Times essay published at the height of the national debate (February 2, 1991)—objected to the Bush Administration’s plan to wage all-out war in the Gulf because they felt that diplomacy and pressure had not yet run their course.  Once it became clear that economic sanctions, the threat of force accompanied by a build-up of allied troops and French and Russian negotiations with Saddam were unlikely to bring about a withdrawal from Kuwait, Democrats upheld the use of the international military coalition sanctioned by the U.N. Security Council.  And they do so now again, if the UN inspection regime proves unable to rid Iraq of genocidal weapons.  The initial Democratic reservations a decade ago reflected prudence and caution before unleashing the awesome devastation of armed conflict, in a battle where weapons of mass destruction were likely to come into play, the environment ravaged, and numerous civilians killed.  They also stemmed from common Jewish and Christian ethical teachings on just war, which maintain that a good-faith effort must be made to avoid warfare before resorting to force.   This condition holds even if the goals of the campaign are righteous, or redound to Israeli and American security.  It is precisely just war doctrine which allows us to morally uphold Israel’s right to self-defense in the 1948, 1967 and 1973 wars, or to preempt and retaliate against terrorists with lethal force—but not to assassinate political leaders or civilians—including those who attack it today in the wake of its strenuous efforts to reach a final peace agreement with the Palestinians.  (On the Jewish and Christian just war traditions see Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, Basic, 1977; Michael Walzer, “War and Peace in the Jewish Tradition,” and Aviezer Ravitzky, “Prohibited Wars in the Jewish Tradition,” in Terry Nardin, ed., The Ethics of War and Peace: Religious and Secular Perspectives, Princeton, 1996; Albert Vorspan and David Saperstein, "The Jewish Tradition and the Gulf War," in their Tough Choices:  Jewish Perspectives on Social Justice, UAHC Press, 1992; William V. O’Brien, Law and Morality in Israel’s War With the PLO, Routledge, 1991.)

 

That the Israeli Government at the time, under right-wing leader Yitzhak Shamir, “begged for the United States to intervene against Saddam Hussein,” as Prager crows, does not show that the war was in fact in Israel’s long-term security interests.  There are many American Jews, on both right and left, who insist that one or another Israeli government’s policies imperil the welfare of the Jewish state.   Some contend that the Oslo track pursued by Rabin, Peres and Barak is mistaken and has undermined Israel’s strength; others that the West Bank settlement programs of Begin, Shamir, Netanyahu and Sharon have jeopardized the chances for enhancing Israel’s security through a workable final peace treaty with the Palestinians based on a two-state solution.  Since when is the government’s line about the way to promote Israel’s well-being sacrosanct and beyond doubt?   Desert Storm was a just war which may have temporarily enhanced Israel’s security.  Hindsight is always 20/20.  Before the fact, there was reason aplenty for concern that hostilities might have ended disastrously, as I warned in the Times.   Is the world now due for a stinging lesson in scorpion logic?, I wondered aloud, reminding the President and his Republican chorus of the Middle Eastern parable featuring the scorpion who prefers to drown with the frog who is ferrying him to the other side of the River Jordan.  Only this time the scorpion may sting with weapons of mass destruction.  

 

We now have compelling evidence that the Persian Gulf War came closer than most Americans realize to a catastrophic ending, involving exchanges of biological, chemical and nuclear weapons, as Avigdor Haselkorn, a leading Israeli strategic analyst, shows in his groundbreaking reassessment, The Continuing Storm: Iraq, Poisonous Weapons, and Deterrence (Yale, 1999).  Haselkorn concludes:  “President Bush, and more important, multitudes of U.S. troops along with the inhabitants of Israel and the rest of the Middle East, can consider themselves exceedingly lucky.  It is uncertain whether Bush would have gone to war if he had formed a correct assessment of the risks involved.  Likewise, it seems inconceivable that Israel would have been such a staunch supporter of the war, insisting on Saddam’s removal to the end, if it had anticipated the kinds of dangers to which the U.S. strategic, intelligence, and military failures exposed it [regarding Saddam’s 1991 capabilities and preparations to launch massive germ and poison gas attacks against Israel at the close of the war, and U.S.-Israeli inability to identify and destroy their sources or protect allied troops].  Considering these lapses, President Bush’s decision to stop the war was the wisest injunction he had issued during the conflict.  It was far more reasonable than the decision to launch Desert Storm.”  Dennis Prager and contemporary warists may have forgotten that not only many Democrats initially raised both moral and strategic concerns over the wisdom of the war before the genie was let out of the bottle.  So did General Colin Powell, then Chairman of the Joint Chiefs of Staff, now President George W. Bush’s Republican Secretary of State.  The tale of the scorpion and the frog may yet hold another chapter.  As mass-destruction weapons proliferate with abandon, it is a fable whose lesson we can ill afford to muffle with pious incantations of security or reckless militarism.

 

Jews can’t be conservative Republicans.  Not if they take seriously the best values of their own moral tradition, reflect thoughtfully on the imperatives of justice and on their enlightened self-interest as Jews and Americans. 

 

References

In order of appearance in the essay

 

·        Dennis Prager, “GOP Jews,” Moment, February 2001, and Marshall Breger, “Still Liberal After All These Years,” The Forward, December 29, 2000.

·        On the use and misuse of the Holocaust in American Jewish political discourse, see Peter Novick, The Holocaust in American Life (Houghton-Mifflin, 1999).

·        Babylonian Talmud, Shabbat 31a  

·        Paul Starr, “The Betrayal,” American Prospect, January 1, 2001.

·        Jeffrey Rosen, “Disgrace,” The New Republic  Dec. 25, 2000.   

·        Vincent Bugloisi, “None Dare Call It Treason,” The Nation, February 5, 2001 

·        E. L. Doctorow, “Has Starr Humiliated Us All?”, The New Yorker, October 12, 1998

·        For critiques of the US Supreme Court’s conduct in the 2000 presidential election, see Cass R. Sunstein and Richard A. Epstein, eds., The Vote: Bush, Gore and the Supreme Court (Chicago: University of Chicago Press, 2001), E.J. Dionne Jr. & William Kristol, eds., Bush V. Gore:  The Court Cases and the Commentary (Washington DC:  Brookings Institution Press, 2001), Correspondents of the New York Times, 36 Days:  The Complete Chronicle of the 2000 Presidential Election Crisis, and Alan M. Dershowitz, Supreme Injustice:  How the High Court Hijacked Election 2000 (Oxford: Oxford University Press, 2001).

·        Babylonian Talmud, Sanhedrin 72b, Hullin 58a, Yevamot 69b, and Exodus 21:22-25.

·        For Jewish views of abortion: David Feldman, Marital Relations, Birth Control and Abortion in Jewish Law (Shocken, 1974), Chapters 14-15; David Feldman, "This Matter of Abortion," in Elliot N. Dorff and Louis E. Newman, eds., Contemporary Jewish Ethics and Morality:  A Reader (Oxford, 1995); Elliot N. Dorff, Matters of Life and Death: A Jewish Approach to Modern Medical Ethics (Jewish Publication Society, 1998), pp. 128-133; Arthur Hertzberg, “Catholics, Jews, and the Abortion Debate,” Reform Judaism, Winter 1996.

·        “Thompson Says He Will Order a New Review of Abortion Drug,” and “Stem Cell Research Advocates in Limbo:  Abortion Opponents Have Urged Bush to Cut Off Money of Projects,” The New York Times, January 20, 2001, p. A11.

·        “Bush Acts to Deny Money Overseas Tied To Abortion,” The New York Times, January 23, 2001, pp. A1, A14. 

·        “Opponents of Abortion Cheer New Administration,” The New York Times, January 23, 2001, p. A16.

·        Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America, Random House, 2000.

·        On religious freedom in America, see Robert Audi and Nicholas Wolterstorff, Religion in the Public Square (Rowman & Littlefield, 1997) and Alan Dershowitz, “Jews in a Christian America:  The Separation of Church and State,” in his Chutzpah (Touchstone, 1991).

·        For Jewish and Christian views of homosexuality and civil rights, see the essays in Saul M. Olyan and Martha C. Nussbaum, eds., Sexual Orientation and Human Rights in American Religious Discourse (Oxford, 1998)

·        Babylonian Talmud, Bava Kama 113a-b

·        Babylonian Talmud, Bava Batra 54b

·        On separation of religion and state in the Jewish tradition, see sources and discussion in Michael Walzer, Menachem Lorberbaum, Noam J. Zohar and Yair Lorberbaum, eds.,  The Jewish Political Tradition: Volume One: Authority (Yale, 2000), pp. 436-7, 424-462.

·        On the Jewish and Christian just war traditions:  Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic, 1977); Michael Walzer, “War and Peace in the Jewish Tradition,” and Aviezer Ravitzky, “Prohibited Wars in the Jewish Tradition,” in Terry Nardin, ed., The Ethics of War and Peace: Religious and Secular Perspectives (Princeton, 1996); Albert Vorspan and David Saperstein, "The Jewish Tradition and the Gulf War," in their Tough Choices:  Jewish Perspectives on Social Justice (UAHC Press, 1992); Gregory S. Kavka, “Was the Gulf War a Just War?,” and Douglas P. Lackey, "Just War Theory," in Larry May and Shari Collins Sharratt, Applied Ethics: A Multicultural Approach (Prentice Hall, 1994); William V. O’Brien, Law and Morality in Israel’s War With the PLO (Routledge, 1991); Gidon D. Remba, “Are We Now Due for A Stinging Lesson in Scorpion Logic?,” The New York Times, Feb. 2, 1991.