The Evolution of Law
(For Keshet Shabbat at Congregation Shaarei Kodesh)
Parashat Mishpatim 5780/2020
People often think of the law as clear-cut - - as timeless - - or chiseled in stone.
We think of Charlton Heston on top of Mount Sinai with the Ten Commandments in hand.
We think of the United States Constitution - browned around the edges, resting under glass at a museum.
There is a permanence in both our American and Jewish legal traditions. A black and white quality on which we all rely. You run through a red light - you get a ticket. You commit securities fraud - you go to jail based on sentencing guidelines. Or in this week’s Parasha of Mishpatim, your ox wanders into your neighbor’s vineyard - you pay the neighbor back for the value of the destroyed crops.
This all seems fair. But, it leads me to one of the portion’s most famous verses: “an eye for an eye, a tooth for a tooth, a hand for a hand,” etc, etc.
This passage has a controversial history often cited disapprovingly by non-Jewish commentators as proof of a vengeful, angry Hebrew G-d.
But we know that an “eye for an eye” was not interpreted or administered literally. In the Talmud, the Rabbis go to great lengths to offer proof that the verse was not about retaliation, but rather monetary compensation.
So my question is: if the Torah is our foundational document - our Holy Book in which each word was carefully chosen - why are even the most conservative of Rabbis comfortable with a non-literal interpretation? After all, if the Torah intends for monetary compensation, why does it not say so?
I believe the answer lies in one of the most important aspects of law and that is quite simply, that laws change.
Neither the Torah nor the U.S. Constitution for that matter were “written in stone” or are permanently ensconced under glass. They change, they progress, and they have done so since the very beginning. Whether the Torah was written by Hashem, or was divinely inspired or was written by human beings, an approach that hinges on the author’s original intent was never in the cards.
There is a Talmudic passage involving a debate between Rabbi Eliezer and the Rabbis of the Sanhedrin over the purity of a new type of oven. When none of Rabbi Eliezer’s arguments convince his colleagues, he cries out, "If the law is in accordance with my opinion, this carob tree will prove it." The carob tree then leaps from the ground and moves far away. The other rabbis respond that a carob tree offers no proof in a legal debate.
Rabbi Eliezer then cries out, "If the law is in accordance with my opinion, the stream will prove it." The stream then begins to flow backwards, and again the other rabbis point out that one does not cite a stream as proof in matters of law.
We think of Charlton Heston on top of Mount Sinai with the Ten Commandments in hand.
We think of the United States Constitution - browned around the edges, resting under glass at a museum.
There is a permanence in both our American and Jewish legal traditions. A black and white quality on which we all rely. You run through a red light - you get a ticket. You commit securities fraud - you go to jail based on sentencing guidelines. Or in this week’s Parasha of Mishpatim, your ox wanders into your neighbor’s vineyard - you pay the neighbor back for the value of the destroyed crops.
This all seems fair. But, it leads me to one of the portion’s most famous verses: “an eye for an eye, a tooth for a tooth, a hand for a hand,” etc, etc.
This passage has a controversial history often cited disapprovingly by non-Jewish commentators as proof of a vengeful, angry Hebrew G-d.
But we know that an “eye for an eye” was not interpreted or administered literally. In the Talmud, the Rabbis go to great lengths to offer proof that the verse was not about retaliation, but rather monetary compensation.
So my question is: if the Torah is our foundational document - our Holy Book in which each word was carefully chosen - why are even the most conservative of Rabbis comfortable with a non-literal interpretation? After all, if the Torah intends for monetary compensation, why does it not say so?
I believe the answer lies in one of the most important aspects of law and that is quite simply, that laws change.
Neither the Torah nor the U.S. Constitution for that matter were “written in stone” or are permanently ensconced under glass. They change, they progress, and they have done so since the very beginning. Whether the Torah was written by Hashem, or was divinely inspired or was written by human beings, an approach that hinges on the author’s original intent was never in the cards.
There is a Talmudic passage involving a debate between Rabbi Eliezer and the Rabbis of the Sanhedrin over the purity of a new type of oven. When none of Rabbi Eliezer’s arguments convince his colleagues, he cries out, "If the law is in accordance with my opinion, this carob tree will prove it." The carob tree then leaps from the ground and moves far away. The other rabbis respond that a carob tree offers no proof in a legal debate.
Rabbi Eliezer then cries out, "If the law is in accordance with my opinion, the stream will prove it." The stream then begins to flow backwards, and again the other rabbis point out that one does not cite a stream as proof in matters of law.
Rabbi Eliezer finally cries out, "If the law is in accordance with my opinion, Heaven will prove it."
From Heaven a voice says, "What do you want with Rabbi Eliezer? The law is as he says it is".
Rabbi Joshua then stands and famously says, “Zeh Lo Bashamayim” - the Torah is not in heaven. . .
The story sends a very serious message. Even the Almighty is no longer in charge of how the Jewish people interpret and apply the law.
So, if the law is subject to change, what is it that actually inspires change?
Let’s look at the example of: an “eye for an eye”. At what point in time do you think Jews and their leaders decided that a literal interpretation was not the way to go? How were we able to make such an early shift to a more business-like punishment?
I think any child or adult in this Shul can answer the question . . . It’s because we can all imagine what it would feel like to accidentally cause physical harm to another and to then endure a horrific, gory punishment. It is our ability to step into the shoes of the responsible party that compels us to provide a different interpretation - - and - - to take a step away from the original words of our sacred text.
In fact, stepping into another’s shoes is not only evidenced in our interpretation of the verse, but it is explicitly commanded within this very same Parasha.
Sandwiched between a prohibition against accepting a bribe and a mandate for a Sabbatical year, we find the following command: “And you shall not mistreat a stranger, nor shall you oppress him, for you were strangers in the land of Egypt.”
The Torah knows it is insufficient to simply say “You shall not mistreat a stranger”. It is human nature to appreciate sameness and to avoid otherness. We are commanded to reject that instinct with an appeal to our experience as Jews. The Torah commands that we remember that we were once strangers. We were once marginalized. And it is with this memory that we can empathize and treat the stranger in a way that may be contrary to our base instincts.
Now, this brings me to the U.S. Constitution, interpretation of which has fallen into two general camps: judges who cling to the Framers original intent and those who apply the text based on a modern understanding of the people in front of them.
Supreme Court Justice Justice Ruth Bader Ginsburg observed and experienced inequality as a child and a young woman. Justice Ginsburg grew up at a time where Jewish people were restricted from certain neighborhoods, clubs and schools. Where quotas were commonplace, and where women were denied the opportunities their male peers were afforded. These experiences shaped her legal career and her ability to understand the people she represented and judged.
Supreme Court Justice Anthony Kennedy who recently retired, is arguably one of the most important champions of the modern gay rights movement - but as a heterosexual, Republican appointee, he was an unlikely candidate for our cause. His friend, Judge Kozinski of the Ninth Circuit, attributes Kennedy’s positions to his custom of “stepping into the skin” of those his decisions effect.
Rabbi Joshua then stands and famously says, “Zeh Lo Bashamayim” - the Torah is not in heaven. . .
The story sends a very serious message. Even the Almighty is no longer in charge of how the Jewish people interpret and apply the law.
So, if the law is subject to change, what is it that actually inspires change?
Let’s look at the example of: an “eye for an eye”. At what point in time do you think Jews and their leaders decided that a literal interpretation was not the way to go? How were we able to make such an early shift to a more business-like punishment?
I think any child or adult in this Shul can answer the question . . . It’s because we can all imagine what it would feel like to accidentally cause physical harm to another and to then endure a horrific, gory punishment. It is our ability to step into the shoes of the responsible party that compels us to provide a different interpretation - - and - - to take a step away from the original words of our sacred text.
In fact, stepping into another’s shoes is not only evidenced in our interpretation of the verse, but it is explicitly commanded within this very same Parasha.
Sandwiched between a prohibition against accepting a bribe and a mandate for a Sabbatical year, we find the following command: “And you shall not mistreat a stranger, nor shall you oppress him, for you were strangers in the land of Egypt.”
The Torah knows it is insufficient to simply say “You shall not mistreat a stranger”. It is human nature to appreciate sameness and to avoid otherness. We are commanded to reject that instinct with an appeal to our experience as Jews. The Torah commands that we remember that we were once strangers. We were once marginalized. And it is with this memory that we can empathize and treat the stranger in a way that may be contrary to our base instincts.
Now, this brings me to the U.S. Constitution, interpretation of which has fallen into two general camps: judges who cling to the Framers original intent and those who apply the text based on a modern understanding of the people in front of them.
Supreme Court Justice Justice Ruth Bader Ginsburg observed and experienced inequality as a child and a young woman. Justice Ginsburg grew up at a time where Jewish people were restricted from certain neighborhoods, clubs and schools. Where quotas were commonplace, and where women were denied the opportunities their male peers were afforded. These experiences shaped her legal career and her ability to understand the people she represented and judged.
Supreme Court Justice Anthony Kennedy who recently retired, is arguably one of the most important champions of the modern gay rights movement - but as a heterosexual, Republican appointee, he was an unlikely candidate for our cause. His friend, Judge Kozinski of the Ninth Circuit, attributes Kennedy’s positions to his custom of “stepping into the skin” of those his decisions effect.
I am blessed to live in a time and place where I can be out and proud, where I was able to marry the
person I love, and where I can raise a family. I don’t think that this would be the case if not for
Kennedy’s empathy.
My husband Lane and I grew up in the Conservative movement. We met in 2003 at a conference for gay Jewish students at NYU’s Hillel when we were seniors in college. At that time, gay people could neither be ordained as Conservative Rabbis nor could they be married within the movement. But just a few years later in 2006 these two legal truths were turned on their heads.
When we considered moving to Florida in 2011, our number one prerequisite was that we find a synagogue that would be a good fit for our family. I don’t think this Shul could have been such a place prior to the changes in the Conservative movement. When you don’t feel like you are an equal member of a community, where you can’t fully participate in all respects, it is impossible to feel truly included.
This past weekend, we got together with another family with two dads who were visiting from New York. We met them several years ago in Provincetown on Cape Cod at the annual Family Week sponsored by the Family Equality Council. In P-town, LGBT families from across the world come together, traveling from as far as Europe and Australia. It is an incredibly special time and place because for those 7 days, we are no longer the Other or the Stranger. Even families that come from very diverse, urban settings like New York City or San Francisco have told me that Family Week in Provincetown provides them with a feeling of inclusion that they don’t get anywhere else.
I grew up in Boca Raton. My family moved here from Detroit in 1992. I attended Donna Klein from 4th through 8th grade and my family was active at B’nai Torah Congregation. I grew up not feeling like I fit in. I was very aware that I was different, and I felt that I couldn’t tell a soul about those differences. No one I knew was gay, and if they were, they didn’t talk about it. What you might call “micro-aggresions” were commonplace: I would frequently hear classmates use derogatory words about gay people. A friend once told me in 5th Grade that her mom thought that HIV was created by G-d to kill gay people. Whether intended or not, the message that I received was that there was something wrong with me.
When I told our friends from P-town last week that I was writing this sermon, one of the Dads, who is not Jewish, said that as an outsider observing the Jewish community, he marveled at the beauty that a bar or bat mitzvah entails, where we wrap our communal arms around the young person as they embark on their chosen path as a Jewish adult. This time of religious maturity is also the time when many LGBT youth are struggling with how they fit into this world. It’s my prayer that CSK can be an example of a safe space for those young people, where we celebrate their path to Jewish adulthood and make it clear that they are loved and supported by our community regardless of their sexual orientation or gender identity.
My husband Lane and I grew up in the Conservative movement. We met in 2003 at a conference for gay Jewish students at NYU’s Hillel when we were seniors in college. At that time, gay people could neither be ordained as Conservative Rabbis nor could they be married within the movement. But just a few years later in 2006 these two legal truths were turned on their heads.
When we considered moving to Florida in 2011, our number one prerequisite was that we find a synagogue that would be a good fit for our family. I don’t think this Shul could have been such a place prior to the changes in the Conservative movement. When you don’t feel like you are an equal member of a community, where you can’t fully participate in all respects, it is impossible to feel truly included.
This past weekend, we got together with another family with two dads who were visiting from New York. We met them several years ago in Provincetown on Cape Cod at the annual Family Week sponsored by the Family Equality Council. In P-town, LGBT families from across the world come together, traveling from as far as Europe and Australia. It is an incredibly special time and place because for those 7 days, we are no longer the Other or the Stranger. Even families that come from very diverse, urban settings like New York City or San Francisco have told me that Family Week in Provincetown provides them with a feeling of inclusion that they don’t get anywhere else.
I grew up in Boca Raton. My family moved here from Detroit in 1992. I attended Donna Klein from 4th through 8th grade and my family was active at B’nai Torah Congregation. I grew up not feeling like I fit in. I was very aware that I was different, and I felt that I couldn’t tell a soul about those differences. No one I knew was gay, and if they were, they didn’t talk about it. What you might call “micro-aggresions” were commonplace: I would frequently hear classmates use derogatory words about gay people. A friend once told me in 5th Grade that her mom thought that HIV was created by G-d to kill gay people. Whether intended or not, the message that I received was that there was something wrong with me.
When I told our friends from P-town last week that I was writing this sermon, one of the Dads, who is not Jewish, said that as an outsider observing the Jewish community, he marveled at the beauty that a bar or bat mitzvah entails, where we wrap our communal arms around the young person as they embark on their chosen path as a Jewish adult. This time of religious maturity is also the time when many LGBT youth are struggling with how they fit into this world. It’s my prayer that CSK can be an example of a safe space for those young people, where we celebrate their path to Jewish adulthood and make it clear that they are loved and supported by our community regardless of their sexual orientation or gender identity.
The fight for equality for the LGBT community is far from over. Here in Florida, for example, a person
can be fired, denied housing or refused services because of their sexual orientation or gender
identity. Keshet, the ADL, and other LGBTQ rights organizations as well as synagogues across
Florida are working to change that with The Florida Competitive Workforce Act, which would
establish nondiscrimination protection in employment, housing and public accommodations. The bill
was first introduced in 2009 by our then State Senator Ted Deutch, and unfortunately, it has not
made it into law. As Jews, it is our obligation to take the words of Mishaptim to heart and to remind
ourselves that we were once strangers in Egypt.
To honor this Shabbat of Love and the work of Justice Kennedy, I will share a quote from Obergfell v. Hodges, the 2015 landmark decision that legalized same-sex marriage nationwide:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Shabbat Shalom
To honor this Shabbat of Love and the work of Justice Kennedy, I will share a quote from Obergfell v. Hodges, the 2015 landmark decision that legalized same-sex marriage nationwide:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Shabbat Shalom
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