Posted on October 6, 2020
by Rabbi Avi Friedman
shalom RAF
[EDITOR’S NOTE: Use of hearing aids on Shabbat is mentioned in this article]
It’s a well-known fact in my family, but it may not be so well known in the congregation that I owe my life to the American Judicial system. You see, I was born nine months after my father was first elected to the bench as a Judge. He claims that he wanted to name me Victor, but my mother insisted on naming me after her father. When my father retired, my sister ran for – and won – election to succeed him on the bench. Alas, I did not get a new nephew nine months later.
All joking aside, it’s not just my family. There is a kind of love affair between the Jewish community and the courts. Since 1916, when Louis Brandeis was the first Jew appointed to serve on the US Supreme Court, there have been eight Jewish Associate Justices of the US Supreme Court. Justice Abe Fortas was nominated to be the Chief Justice, but he was not confirmed and remained an associate justice. And from 2010 until just a few days ago, fully 1/3 of the US Supreme Court was Jewish. Pretty amazing!
The first two Jewish Supremes – Louis Brandeis and Benjamin Cardozo – have a university and a law school named after them, respectively. That’s how we – as a Jewish community – show our respect. And, on the whole, we respect and love the legal tradition.
The Jewish system of jurisprudence is rooted in the Bible itself. Upon the advice of his father-in-law Yitro/Jethro, Moshe established a system of judges to hear cases so that he would not have to adjudicate each and every conflict. Yitro said to Moshe that if you set up a court system properly for the people, “this people will come to its place in peace (Exodus 18:23).”
In the Book of Deuteronomy, Moshe’s valedictory, he wanted to ensure that the system he set up would endure. In Deuteronomy 1:16-17, he said: “Hear out your fellow people and decide justly between any two people – Israelite or a stranger. You shall not be partial in judgment: hear out low and high alike. Fear no human being, for judgment is God’s.”
The rabbinic tradition is rooted in the study of legal texts and the preservation of that legal system despite losing our homeland. Pirkei Avot – one of the oldest rabbinic texts – is, in many ways, an instruction manual for judges, advice passed down from generation of judges to the next. In two consecutive texts: Yehudah ben Tabai taught: “…when the litigants appear before you, deem them both guilty. But when they depart, having accepted the verdict, regard them both as innocent (Pirkei Avot 1:8).” And then Shimon ben Shetah taught:” Cross-examine the witness thoroughly, but be careful in your choice of words lest something you say lead them to testify falsely (Pirkei Avot 1:9).” This is not the feel-good ethical moral advice that we expect from Pirkei Avot. This is practical advice from one judge to another.
The Talmud – the vast collection of case law, legislation and legal interpretation – continued the tradition of training judges. In BT Shabbat 10a , we read: “Every judge who judges truthfully, even for a single hour, is credited as though he had become a partner with God in the creation of the world.” So, it’s no surprise that Justice Ruth Bader Ginsberg – only the second woman to serve on the US Supreme Court and the first Jewish woman to do so – would become a rock star in the Jewish community. It’s actually a little surprising that her star turn extended beyond the Jewish community.
There was a documentary film made about her – simply called “RBG.” And another film entitled “On the Basis of Sex” was made about her life with actors portraying all the characters. There are countless books about her – from children’s books to serious academic analysis of her legal legacy. And of course, there’s the RBG workout.
But she really reached the pinnacle in 2013, when a second year law student created a Tumblr with the name Notorious RBG – a play on the nickname of rapper Biggie Smalls who was known as the Notorious BIG – and a pop icon was born. The number of rap tributes to the Notorious RBG both before and after her passing is simply beyond counting.
From a Jewish perspective, she was a rock star because she applied Jewish values and legal principles to her work as a Supreme Court justice. She did NOT try to compel anyone else to PRACTICE Judaism – I couldn’t even tell you much about her own personal practice. However, she embodied the kinds of Jewish values that have undergirded our legal system for centuries, which have influenced the modern western legal system.
Let me explain. A look at some of RBG’s most influential cases shows how Jewish values permeated her work.
In The United States v. Virginia – RBG wrote the majority opinion that forced VMI, the country’s last remaining all-male military academy to accept women cadets. Now, you might be thinking to yourself, wait a minute – traditional Judaism was not egalitarian. How does this represent traditional Jewish values?
The truth is that the rabbis were always as sympathetic to women’s issues as they could be in their time and in their way. As my teacher Rabbi Judith Hauptmann shows in her book “Re-Reading the Rabbis,” there are many examples of the rabbis doing the most that they could for women. One classic example is the ketubah – the wedding contract that we use to this day. There is no biblical precedent for the ketubah. The rabbis created it. While it did NOT make women equal parties in their marriage agreements, it did give them standing and protection so that they would not be left penniless in the event of a divorce.
It was this kind of creativity and sensitivity to women’s issues that led to many changes in Jewish law over the years – such as women inheriting property equally with their brothers and the prohibition on polygamy. It all laid the foundation for the non-orthodox Jewish world to adopt full equality for women in the 20th century. While there are still corners of the Jewish world that deny egalitarianism, it is clearly the overwhelming norm in Jewish life in the 21st Century.
RBG’s commitment to egalitarianism reflects the value of protecting and strengthening women which goes back over 2,000 years.
In Obergefell v. Hodges, the Supreme Court ruled that the Constitution guarantees a right to same-sex marriage. Although RBG did not write the majority opinion – Justice Anthony Kennedy did – there might not have been a majority opinion in favor of same-sex marriage were it not for RBG’s forceful arguments during the hearing. Again, one could argue that this decision is not in line with traditional Jewish thinking, but her argumentation was classically Jewish.
Her fellow justices argued that the traditional understanding of marriage was the union of one man and one woman and that a same-sex marriage could not produce children. In response, she argued that marriage was originally the economic relationship between a dominant man and a subordinate woman negotiated by the man and the woman’s father. Thus marriages today are – hopefully!! – NOT the exact same as those traditional marriages.
Further, a marriage between a 70 year old man and a 70 year old woman would not produce children either, but it was permitted under the law prior to Obergefell. Reproduction should not be a consideration in determining the permissibility of a marriage.
These were some of the same arguments used nearly ten years earlier when the Conservative movement took on the same issue. The authors of that Conservative Movement responsum – Rabbis Danny Nevins, Elliot Dorff and Avi Reisner – added one more component: the dignity of the individuals seeking to marry. Same-sex couples must be treated with the same sense of dignity as heterosexual couples. That is a value that could be found throughout RBG’s legal writings – as we will see.
In Olmstead v. LC,RBG wrote the majority opinion upholding the rights of individuals with special needs – in particular, individuals suffering from mental illness and individuals with developmental disabilities. Two women in Georgia were being forced by the state to remain in an institution despite the fact that every evaluation of them indicated that they would have better outcomes in communal living situations – a less restrictive environment. RBG wrote that the unjustified segregation of persons with disabilities constitutes discrimination.
Once again, this is right in line with Jewish though on the treatment of individuals with disabilities. Rabbi Eliezer Waldenberg was easily one of the most influential orthodox legal scholars in Israel in the 20th Century. He passed away in 2006. He was asked about using hearing aids on Shabbat. Now for most of us – who are participating in Yom Kippur services today via Zoom – this wouldn’t even be a question. However, in the orthodox world where the use of electricity is prohibited on Shabbat and the carrying of objects from one domain to another is also prohibited on Shabbat, this was a serious question. And if a rabbi like Rav Waldenberg – known as the Tzitz Eliezer – said they were not permitted, then many, many hearing impaired orthodox Jews would not have worn their hearing aids on Shabbat.
However, Rav Waldenberg wrote that the Jewish concept of “K’vod Ha-Briyot” – the dignity of God’s creations – overrides the prohibitions of Shabbat. In other words, persons with a hearing impairment would not be able to participate in communal life – or even family life! – if they did not wear their hearing aids and they would feel like second-class citizens throughout the entirety of Shabbat. And that could not possibly be what God would want on Shabbat.
So, on the day when we celebrate God resting after creating the world, we place the dignity of God’s creations above the rabbinic prohibitions on Shabbat. RBG clearly understood that all of God’s children deserve to be treated with dignity.
And then, in Ledbetter v. Goodyear Tire and Rubber Company, RBG wrote a scathing dissenting opinion. She definitely wore her dissent collar that day. Lilly Ledbetter sued Goodyear for back wages when she found out that she had been paid less than men hired at the same time she was hired for doing the same work that she did. When the majority of the Supreme Court found for Goodyear, needless to say, RBG was angry and frustrated.
At first glance, you might think that is was a simple case of RBG supporting a woman who was being treated unfairly. While she undoubtedly WOULD support a woman being discriminated against, and she did believe that Lily Ledbetter was discriminated against, that’s not what the court case was ultimately about.
The law upon which Lily Ledbetter’s case was decided – Title VII of the Civil Rights Act – has a 180-day limit on reporting discrimination. Since she did not report the pay discrimination within those 180 days, the Supreme Court struck down her suit. The majority opinion did not address the merits of her case.
RBG was livid. She read the entirety of her dissent into the record from the Bench – something not typically done – AND she edited it for publication as an Op-Ed in the New York Times. She argued that the 180-day limit should not apply to pay discrimination because it happens in small increments over a long period of time. Further, the salary information of other workers is not widely available for comparison. Thus, she argued, it would be unreasonable to expect a typical person to notice and report within 180 days. That’s not how the world works.
Her argument would have made the rabbis proud.
In BT Bava Kama 79b, the rabbis said: “We do not decree a law for the community which most people cannot follow.” In the Talmud, the rabbis applied this principle in connection with the permissibility of olive oil produced by non-Jews and what kind of animals one could raise in the land of Israel.
The example I always like to give is the mechitzah – the divider between men and women in orthodox synagogues. There’s no mention of the mechitzah in the bible and only a loose precedent for it in the Talmud. However, if an orthodox rabbi tried to remove the mechitzah from his synagogue tomorrow morning just before Yom Kippur services, I don’t think it would be well received. The members of his community would not be able to follow such a decision.
On the flip side, if you were to return to the synagogue after the lockdown to find a mechitzah down the middle of our sanctuary, I don’t think you’d be too happy about it. The members of our community would not abide such a decision.
Regardless of movement, rabbis should not create laws that the people cannot observe. And RBG believed that the same was true for our American legal system.
Although, RBG has not yet been laid to rest, our Jewish community is in mourning for one of our own. We mourn her not only because of the pop icon she had become, but – whether we recognized it or not – because she brought our Jewish values into the American court room and by extension into American society.
If we go back to Pirkei Avot, the text I cited earlier, throughout the first chapter we read how one generation of judges received the tradition from the generation that preceded them and then passed it down to the next generation of scholars. Shemayah and Avtalyon received the tradition from Judah ben Tabbai and Shimon ben Shetach and then passed it down to Hillel and Shamai and so forth. Judging by the number of former law clerks who came to pay tribute to RBG as she lay in state, it is clear that RBG passed down the tradition that she received to the next generation. She was another link in the chain of judicial tradition which started with Moshe, continued with the rabbis of the Talmud and continued through Jewish communities around the world through our study of sacred texts.
When we hear the news of someone’s death, we are actually supposed to recite a blessing. It’s a way of saying that God is a presence in our lives even at our lowest moments. That blessing is “Baruch… Dayan Ha’emet.” Praised are You, Adonai our God, Power of the Universe, the Judge of Truth.” It has special significance when we recite that blessing upon the death of a judge.
May we – as Americans, as Jews and as lovers of the legal tradition – continue to be blessed with judges who improve the status of women and strengthen women, who uphold the dignity of all people and who strike down laws that the people are not capable of abiding by.
May the memory of Justice Ruth Bader Ginsberg – Yita Rachel bat Natan v’Tzirel Leah – continue to bless our country and our Jewish community.
L’shanah Tovah!
Source: shalomraf.wordpress.com/2020/10/06/rbg-kol-nidre-5781/
