The Jewish Seat

Seven American Jews have served on the Supreme Court of the United States of America.

Make that eight — if you include Sandra Day O’Connor.

O’Connor, who announced her retirement from the bench last week, isn’t Jewish (you read it here first). But her legal opinions have had a profoundly positive effect on American Jewish life, which underscore the potential impact of the person President Bush nominates to replace her.

Appreciation is pouring in for O’Connor from streams of Judaism that rarely flow together. Orthodox groups have lauded her for her moderation, while more liberal denominations have praised her swing vote on issues dear to them.

“Justice O’Connor so often has been the decisive vote on the court in support of fundamental rights: religious liberty, civil rights, reproductive rights key among them,” wrote Robert Heller, chair of the Union for Reform Judaism’s board of trustees.

For many years, there really was such a thing as “the Jewish seat” on the nation’s highest court. The first Jew seated on the court was Louis D. Brandeis, nominated by President Woodrow Wilson in 1916. A native of Louisville, Ky., Brandeis graduated Harvard Law School at age 20, and soon established a reputation as a brilliant defender of progressive rights, championing trade unions and women’s suffrage, among other causes.

As Associate Justice Ruth Bader Ginsburg noted in a recent article on Jews in the court, Brandeis, who was not religious, was renowned for his ardent sense of ethics and social justice. Franklin D. Roosevelt’s name for him was “Isaiah,” after the biblical prophet.

President Herbert Hoover appointed Benjamin Cardozo to the court in 1932. The descendant of an illustrious Sephardic family, Cardozo wrote extensively on the relationship of law to social change, defending most of the New Deal measures against the court’s more conservative justices.

Following Cardozo, who died after serving six years on the bench, Roosevelt appointed Felix Frankfurter, a Harvard Law professor who helped found the American Civil Liberties Union, joined the National Association for the Advancement of Colored People and defended labor unions, as well as anarchists Sacco and Vanzetti.

Frankfurter adhered to Cardozo’s dictum that “the great generalities of the Constitution have a content and a significance that vary from age to age.” In a day and age when the term “activist judge” was a compliment, not a curse, these two men had a tremendous impact on the lives of less fortunate Americans.

President John F. Kennedy appointed Arthur Goldberg to the court in 1962, following Frankfurter’s retirement. Goldberg, the youngest of 11 children born into a poor immigrant family, was also a staunch defender of organized labor. A World War II veteran, he went on to serve as secretary of labor, U.S. representative to the United Nations and ambassador at large.

When Goldberg resigned to become U.S. ambassador to the United Nations., President Lyndon Johnson appointed Abe Fortas to the court. Fortas was also a champion of individual rights, a man who stood up to Sen. Joseph McCarthy during the Cold War and argued successfully in Gideon v. Wainwright for the right to publicly funded counsel for indigent defendants.

The lone, liberal “Jewish Seat” became the plural “seats that happen to be filled by Jews” when President Bill Clinton appointed Ginsburg in 1993 and Stephen Breyer in 1994. There was no great political or social upside for Clinton in choosing a Jew, and certainly no downside he had to brave. During Brandeis’ tenure, by contrast, one justice refused to be in the same room with him.

Breyer, for his part, looks little like a crusader for the separation of church and state in the court’s two recent decisions on public displays of the Ten Commandments. Breyer voted with the strict separationists on the court in one case and with those favoring the display of religious symbols on public property in the other.

O’Connor, ironically, adopted the purer position, arguing for the separation of church and state in both cases, ending up once on the winning side and once with the losers in the 5-4 decisions.

Over her entire career, O’Connor, more than any other justice, was able to discern the middle ground in socially divisive cases. This mattered for the nation at large, but also for a Jewish community that is more and more split — perhaps not 50/50, but passionately so — on complex issues like school vouchers, religious symbolism, affirmative action and abortion. She was a justice who could fairly and firmly assert a consensus that helped bridge divides within our community and between Jewish Americans and others.

Consider her lucid opinion striking down the display of the Ten Commandments in a Kentucky courtroom. “Those who would re-negotiate the boundaries between church and state must therefore answer a difficult question,” O’Connor wrote. “Why would we trade a system that has served us so well for one that has served others so poorly?”

It is a conservative argument in defense of a cause liberals hold dear.

Bush needs to put forward a name in the O’Connor mold. To paraphrase O’Connor herself, why trade someone whose judiciousness has served us so well, for someone whose rigid ideology may not?


Holy Boundaries

This week’s Torah portion includes the verse: "Do not lie with a man as with a woman. It is an abomination" (Leviticus 18:22).

The subject is particularly at issue because the Conservative movement is now revisiting Jewish laws around homosexuality and the ordination of openly gay Jews.

The meaning and implications of this famous verse are disputed. A literal translation is: "Do not lie down the lying down of women." Some scholars interpret this as referring to penetration or specific cultic practices. The word to’evah (abomination) is undeniably negative (Lev. 20:13). However, the Bible uses to’evah to describe everything from eating nonkosher animals to withholding charity to practicing idolatry to committing adultery. Why should one particular to’evah of men who "lie down the lying down of women" become the measure of turpitude? Why should heterosexuality (or abstinence from homosexuality) be the litmus test for religious leadership, among and above other behaviors and values?

The verse is also significant for what it does not say. There is no biblical law against women partnering with women, and rabbinic prohibitions are both late and weak. Restrictions against lesbians are rooted primarily in social critique and emotional response, not halacha. Shall we therefore ordain lesbians, but not gay men? Some rabbis stiffen the prohibitions against lesbians to preserve sane and consistent mores. Others, like Bradley Shavit Artson, find halachic ways of softening prohibitions against male homosexual sex.

As I understand the peshat (simple, contextual meaning) of Lev. 18:22, it prohibits and condemns sexual contact between men. However, that is where rabbinic interpretation begins, not where it ends. We have ample rabbinic precedent for imposing restrictive definitions, or expansive requirements, in order to mitigate or effectively eliminate biblical punishments and judgments. Consider rabbinic limitations on the death penalty, compared to biblical law. Had the ancient Sages accepted the peshat of Deuteronomy 21, the stoning of rebellious children would pose quite a challenge to Jewish continuity. Within the Bible itself there are changes in law and morality (e.g., regarding the treatment of slaves).

Rabbinic decisionmakers readily admit that rulings and argumentation typically begin with the desired end in mind. That desired end, in turn, is based on rabbinic hierarchies of values, on privileging certain texts and ideas over others.

Rabbis Hillel and Akiva both taught, in different words, that loving one’s neighbor as oneself is the essential principle of Torah. Why should that principle hold any less true in a discussion of sexual behavior? Opponents of gay rabbis sometimes equate homosexuality with molestation, bestiality or promiscuity. Loving adult relationships should not be confused with the abuse of children or animals. Monogamous partnership is a Jewish standard we can and should prize, regardless of sexual orientation. Even if one regards both adultery and monogamous gay partnership as sexual sins, the former hurts people and breaks covenant; the latter increases love in the world.

It is hard to convey the pain and damage caused to our neighbors by excluding gays from Jewish communal acceptance on the one hand, and tolerating sexual abuse on the other. The movements — Reform, Orthodox, Conservative, Reconstructionist and Jewish Renewal — have not yet adequately addressed molestation, sexual harassment or sexual misconduct by Jewish leaders. The challenge is to rigorously define and practice a comprehensive Jewish sex ethic in which "not doing what is hateful" takes priority.

Leviticus 18 suggests that one pillar of Jewish sexual ethics is maintaining appropriate boundaries. I oppose and would mitigate or uproot the prohibition against male homosexual sex, and the presumption that men own the sexuality of their women (Lev. 18:16). Still, I value the public reading and conversation about sexual boundaries that we hold now and on Yom Kippur. The Torah reading reminds us: Don’t abuse another. Your body is your vessel. Holiness requires distinctions. Sexuality can undermine or enhance holiness. Certain boundaries should not be crossed.

I acknowledge that the issue of boundaries is precisely why some Jews sincerely believe that homosexuality must continue to be characterized as abomination. If that is your position, I urge you nevertheless to welcome religious leadership from gays. Every human being — and therefore every rabbi — sins. Gay men and lesbians can serve the Jewish community nobly; as a class, they have no moral or religious failing.

If we accept that gay Jews can serve the Jewish community, can we ask our gay rabbis, cantors and educators not to find a life partner, not to celebrate when they do and not to raise Jewish children? Is that what it means to be a Jewish role model?

Several rabbis have been credited with saying: "I am not lenient regarding the laws of Shabbat; I am stringent on laws protecting life and health." (Thus, they defend and endorse violating Shabbat for the sake of obtaining medical care, even when the patient might have waited.) Without in any way comparing myself to these sages: I don’t consider myself lenient regarding laws of sexuality. I try to be stringent on "love your neighbor as yourself."

Rabbi Debra Orenstein is spiritual leader of Congregation Makom Ohr Shalom in Tarzana and a frequent scholar-in-residence.