The Torah and the First Amendment

September 6th: Shof’tim
Rabbi David E. Ostrich

In our modern world, we compartmentalize various aspects of our lives and keep them separate. Some things are in the realm of religion, while other things are in the realms of health and hygiene, etiquette, civil law, criminal law, or Home Owners Association rules or covenants, etc. Thus it would be inappropriate for one realm to intrude in another. The Government has no business regulating our religion. The Civil Code has no business telling us how to care for our bodies. Etiquette may have influence, but it has no legal authority.

This was not the case in the ancient world—the world of the Torah and much of the Talmud, where everything was under the aegis of God and therefore religion. So, when we read the opening passage of this week’s Torah portion, we should realize that the judges being appointed are not restricted to religious matters. “You shall appoint magistrates and official for your tribes, in all the settlements that the Lord your God is giving you, and they shall govern the people with due justice. You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue, that you may thrive and occupy the land that the Lord your God is giving you.”  (Deuteronomy 16.18-20)

These magistrates’ and officials’ province—delivered with due justice—was everything God created, i.e., everything! Thus do we have Leviticus dispensing medical advice in regard to skin conditions, Baba Metzia (Talmud) stipulating rules for neighborhood zoning, and Pesachim (Talmud) prohibiting (for health reasons!) the eating of meat and fish at the same meal. The goal of the Torah was to create an ideal society in every aspect, and thus every aspect of life was discussed and enforced.

The problem, of course, is when two or more groups of people—each with its own rules of conduct—live together. Whose rules apply to whom, and under what conditions?  Oh, yes, and there is that other pesky issue: human rights. Why does anyone get to tell another human being what to do?

These issues have always been of concern to thinking people, but various economic, governmental, civic, and philosophical factors converged in the 17th and 18th Centuries (the Enlightenment) to make some major changes in the Western World. Among these changes was a principle upon which our nation was founded—that each individual is endowed by the Creator with inalienable rights, rights to life, liberty, and the pursuit of happiness. It is Biblical, in that justice and fairness are the goals. But the modern struggle for justice has found that the un-Biblical philosophy of compartmentalization is an important instrument.

An example is the First Amendment to the United State Constitution:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Though the goals may be justice and fairness, the means involve keeping government and society out of much of our individual lives.

President Thomas Jefferson gave an early and significant interpretation to this amendment in his Letter to the Danbury Baptist Association (1802). Though he explains that the passage, "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," builds a “wall of separation between Church & State,” there has nonetheless been a tendency for the State or Society to push its way into the tent of individual religiosity. Should not all businesses close on the Lord’s Day (Sunday)? Should not all public school days start with prayer? Should not all prohibitions for the public good—liquor, hallucinogenic mushrooms, or animal sacrifices—apply to everyone, regardless of their religion? Should not programs for the public good—like mandatory health insurance—apply to everyone, regardless of their religious views on some of the services provided?

The struggle to live communally but autonomously continues as does the conversation about it, and we are fortunate in our community to have a formal and public chance to participate. On Sunday September 15th, from 1:00 – 3:30, Centre County will have our annual Constitution Day. This year, the festivities will be at Tussey Mountain in Boalsburg, and everyone is invited. There will be exhibits on the Constitution and the Bill of Rights, speakers, musical entertainment, and a number of food trucks. And, the music will continue on until 6:00 PM.

Members of our congregation will be participating in many of the exhibits. Make sure to stop by the First Amendment exhibits and our presentation on Freedom of Religion and the “Establishment Clause.”

As I said, the struggle for justice and fairness and liberty continues, and it is important that we understand the principles and the history of our great communal project.