Category Archives: Halacha

One of the most unfortunate consequences of the impetuous rush to impeachment (and acquittal) is the plausible possibility that this nuclear weapon of democracy – the abrogation of the people’ will as expressed at the ballot box by the president’s partisans opponents – will become routinized in the future. For example, the next president who whispers to Russia’s president to tell the Russian autocrat that he will have more flexibility after the election, and so Russia should not rock the boat and make unreasonable demands about missile deployment beforehand, then that president should be impeached for subordinating the nation’s security to his own electoral fortunes.

By the misguided standards of today’s Democrat resisters, a rough overview of American history would indicate that Washington, Adams, Jefferson, Lincoln, Wilson, FDR, LBJ, Reagan, two Bushes and one Obama should all have been impeached. Of course, the only impediments to this happening in the future is not the conduct of the president – probably all could be impeached by this legal yardstick – but the alignment of two indispensable factors in the current imbroglio:  A Democrat House and a fully-aroused left-wing mainstream media. You need both – I presume with justification that Republicans would not act as recklessly (remember that Clinton was admittedly guilty of committing the felony of perjury) and that the mainstream media would defend to the death of honest journalism any Democrat president, whatever he or she did.

So you need both, and here you have both, with the sad result that impeachment itself will have become so mainstreamed – the House indicts with a slim majority, the Senate acquits because it can’t achieve the supermajority needed for conviction – that corrupt presidential behavior is no longer deterred because the impeachment process is perceived as toothless. In such a rabid climate, it is not unforeseeable that impeachment becomes as dull as a Knicks game, and attracts about as much attention.

It is indeed an appalling sign of the decline of American politics and the polarization of society that the US managed only one impeachment process in the first 180 years of its existence – and now three in the last fifty years. Invariably, there will be more to come. The irrational hatred of the resisters, who fear that they will be unable to stop this President’s re-election, will move to the next stage after this failure. Perhaps alleged violations of the defunct emoluments clause will be dredged up. Perhaps the corpse of the Muller investigation will be exhumed again. The dearth of evidence of any crime, any wrongdoing, of anything but politics as usual, will stain American politics for decades. At least the Nixon hearings had John Dean and Alexander Butterfield. Here, third and fourth hand hearsay, and the one person who testified and had listened to the allegedly offensive conversation has been publicly contradicted by several others who were also on the call – but not allowed to testify. If President Trump ran on a commitment to drain the DC swamp, the current impeachment process is compelling proof that the swamp has not yet been drained. Its long term effects remain to be seen.

The bitter paradoxes abound. The Democrats are outraged that military aid to Ukraine was briefly delayed, and termed a threat to US national security, while unconcerned that no military aid was provided to Ukraine under the Obama administration, and when Ukraine most needed it – while Russia conquered Crimea and parts of eastern Ukraine.

The Democrats caterwaul over the interference of Ukraine in this election but not the last (that is not even worthy of investigating) – even as the Democrats reached out and hired foreign entities in Russia and Ukraine to fabricate a dossier about a political opponent, even as Democrats regularly interfered in Israel’s elections, and probably those of many other countries, in the past.

The Democrats screech over the intangible benefit Trump might have received from an investigation into the deeds of a political opponent but have squelched an investigation into the tangible benefits Biden and son really did receive, as if, somehow, Joe Biden is immune from investigation for alleged wrongdoing  while he was Vice-President because he is now running for president.

And the Nixon impeachment process actually featured evidence of wrongdoing, including spying on political opponents and journalists, even as Democrats today (like Adam Schiff) try to bolster their case by spying on political opponents and journalists.

All these are applications of the famous Talmudic principle: kawl haposel, b’mumo posel (Kiddushin 70a). Whoever besmirches others does it with their own flaws. Whoever stigmatizes another does it with their own blemish. If only they had the self-awareness to recognize this, it wouldn’t be so catastrophic. But they don’t, and so civil society plunges into chaos and is torn asunder.

How should leaders’ misdeeds be treated? By definition, no one is perfect, and neither king nor president achieves perfection by assuming a political office.  Jewish tradition teaches, in fact, that “fortunate is the generation in which the prince brings offerings for his sins” (Horayot 10b). Not to be able to admit any wrongdoing, and survive the confession, is an inducement not to admit any wrongdoing. Such breeds arrogance, recklessness and a poor cadre of potential leaders.

Can Jewish leaders be impeached? Don Yitzchak Abravanel, who  served the Jew-hating monarchs Ferdinand and Isabella, famously said no (Commentary to Devarim 17). All rulers are accepted with their faults and even (strong words!) stand in place of G-d on earth – and such is true even of Gentile rulers. Furthermore, the Jewish ruler is chosen by G-d, so only He can reverse His decision (see Zecharia 11:8).

While there is some validity to the Abravanel’s contentions, most authorities disagreed. Mmonarchs are ratified, and can be deposed, by a decision of the High Court. Thus, the Yerushalmi (Avoda Zara 1:1) suggests that Yeravam feared the Sanhedrin would execute him if he worshipped idols. He encouraged others to sin, but didn’t necessarily sin himself, at least at first. Both Avshalom and Adoniyahu asserted a claim to the monarchy while their father King David was still alive, and even King David deemed himself at least partially deposed during these rebellions (Yerushalmi Rosh Hashana 1:1).

Radak (I Melachim 21:10) and Ralbag (II Shmuel 17:4) both underscore that a corrupt, thieving, violent king could be deposed by the people, and Ralbag (Mishlei 29:4) noted that such a person is not worthy to be called a “king.” It is as if the title disappears, along with his power and authority.

Nevertheless, Rav Naftali Bar-Ilan (in his magisterial “Mishtar u’Medina b’Yisrael”) cautions that the removal of a ruler should be done with great deliberation and reluctance. Even a ruler deemed wicked usually has some merits in other areas, and the judgment as to his ouster must include the overall welfare of the community and kingdom. Even the rapacious King Ahab fared better under these criteria. And often a toppled monarch will be succeeded by someone far worse in character, and great instability and unrest will ensue. Hesitation and multiple stage thinking should be the governing rules, and not just crass politics or fear of another election loss.

It would seem that the Democrat’s objective here – since they know the Senate will not convict and remove – is to create an overwhelming sense of “Trump fatigue” in the electorate, such that people tire of the constant drama, accusations, tweets and anarchy, and are even willing to risk the loss of security, peace and prosperity to achieve several news cycles without the overheated rhetoric of the President’s critics. Who knows? It might work – but it is a long shot and extremely damaging to the polity.

This brings me to the final point, seemingly unrelated but in fact part of the crisis of politics in America: the election cycle is too long because it literally never ends. It makes no sense that candidates spend tens of millions of dollars and drop out before a vote is even cast. Other countries – Britain and Israel (the world’s expert on elections, although not on forming functioning governments) – can carry out the entire process in just several months.

I humbly propose this law: no candidate is allowed to declare his candidacy, and no debates can be held, before January 1 of the presidential election year. This allows a month until the primary voting starts. The drastically-reduced campaign season would have to feature more substance and fewer inane personal attacks on the aspirants. That might even induce a qualified candidate or two to run.

It would at least give the American people a well deserved break from the madness – and banality – that currently grips it.

Does the Talmudic category of “ones rachmana patrei,” that “the Merciful One exempts [from punishment one who sins because of] coercion” apply to sins that are not forced on us by our enemies or by circumstances beyond our control? This issue has again risen to the fore by the assertion of a well known American-Israeli rabbi that this concept can be applied to deal sensitively with the plight of practicing homosexuals and has been the source of controversy here in Israel. To be clear, my focus here is not on the quandary of the homosexual, a situation that in our world causes great hardship to individuals and families, demands our sympathy and understanding and has been discussed at length. It is rather on the plight of the rabbinate.

What was suggested is not a new idea and was first proposed decades ago. It was posited, according to a straightforward reading of the statement, that the Torah’s prohibition of homosexual contact applies only to a heterosexual who chooses to engage in same-sex behavior, not the committed homosexual whose only desires are in that arena. As he is, purportedly, wired that way, he cannot be held responsible for his actions and, indeed, G-d would not want to deprive him (or her) of the capacity to find love in this world.

Yet, upon scrutiny, the application of “ones rachmana patrei” to this situation is flawed, misplaced and incorrect, and will inevitably lead to a deterioration in observance of any Jews who are influenced by it. There is the considerable likelihood that such contentions will lead Jews astray in every area of life in which they feel they lack self-control on the one hand or seek passionately on the other. It can and will undermine the very notion of commandment, sin, and repentance. In essence, this methodology of “ones rachmana patrei” can be equally misapplied to Shabbat desecration, theft, violence, adultery, gossip, tax fraud, and any other sin, major or minor. Several points deserve analysis.

Firstly, “ones rachmana patrei” is generally applied when one is forced to sin because of some external coercive element rather than a lack of internal control. The motivating factor is always some outside force and not simply an innate desire that cannot be constrained. For example, the anusim (from the same root; Conversos in the vernacular) were forced to convert and engage in Christian practices because of the murderous hostility of 15^th century Christian Spain. The proof text for “ones rachmana patrei” is the case of the naarah ha’me’urasa, the betrothed maiden who is violated in the field against her will. “And to the maiden you shall do nothing; she is not guilty of a capital crime” (Devarim 22:26). As the Talmud (Masechet Bava Kama 28b) explains, she is guiltless, compelled to sin because of the brutish acts of her assailant.

Secondly, the classic cases of “ones rachmana patrei” are noted by Rambam (Hilchot Yesodei Hatorah, Chapter 5) under the laws of martyrdom. One who is compelled by hostile enemies on pain of death to commit one of the three cardinal sins – idolatry, sexual immorality, or homicide – is obligated to forfeit his life and not sin, as those three sins are particularly corrosive to the soul. One can save one’s life and violate all other sins except in a time of religious persecution. Yet, if the person instead saves his own life by committing one of the three cardinal sins, “he has failed to sanctify G-d’s name, but because he was coerced, he is not punished” (Rambam, ibid 5:4). Again, “ones rachmana patrei” requires the coercion of an outside party.

Thirdly, it must be underscored that “ones rachmana patrei” only means that there is no criminal punishment of the offender. It does not at all render the act in question permissible in the first instance. So even if it were true that the committed homosexual is an “anoos,” and thereby not liable to judicial punishment, that would not justify the commission of the acts in any event. They remain prohibited, even if there is no longer criminal liability. An article in the recent Tzohar journal (Volume 41, pages 81-101) reiterated the prohibition against people with same-sex attractions even secluding themselves together; the authors never entertained permitting sinful actions based on “ones rachmana patrei.”

Nevertheless, “ones rachmana patrei” is applicable in many familiar areas to us. We are not liable today for not bringing the Korban Pesach, or one in captivity has not violated the Torah by not eating in the Succa on the 15^th night of Tishrei, because circumstances have made it impossible to fulfill those mitzvot. Sadly, a person without arms cannot fulfill the mitzvah of wearing tefillin shel yad like a blind person cannot recite Kiddush Levana. One who will die unless he consumes non-kosher food must eat non-kosher food. All are exempt by G-d from fulfilling these commandments because of the situation forced upon them. A license to sin because of tendencies that cannot be controlled is far removed from this concept.

Indeed, a person is only considered an “anoos” after he has made every possible effort to fulfill a mitzvah or avoid its violation – every possible effort. And even then, if he cannot fulfill the commandment, he has to be overcome with regret and sorrow, much like Moshe was when told he could not enter the land of Israel even though he desired to perform the commandments tied to the land. But wasn’t he prevented by G-d and therefore not obligated in those mitzvot? Yes, and so the Alter of Kelm noted that we learn from Moshe that even an “anoos” has to be distressed about his failure to follow G-d’s will (see Rav Menashe Klein’s Mishneh Halachot 17:189, at the end). Again, this was an inability to fulfill positive commandments; a permanent license to engage in a capital prohibition was never contemplated in the absence of any external coercive element.

There are grounds that support the notion that someone who is mentally ill and cannot control himself is not liable for his actions – because “ones rachmana patrei.” It is analogous to the insanity defense familiar in secular law. But there is no indication that the concept of “ones rachmana patrei” is being employed here in this sense, and, as we know, such an assertion in this context would be the epitome of political incorrectness.

Bringing comfort to troubled souls is one of the essential tasks of the rabbinate but to do so by distorting or fudging the Torah’s prohibitions is self-defeating and ultimately destructive. The Talmud (Masechet Sanhedrin 75a) tells the distressing tale of a man who developed an obsession with a particular woman, such that the doctors said he would die if he did not sin with her. The Sages brusquely prohibited even a private conversation between the two, much less anything more risqué. They did not seek to rationalize his desires because of “ones rachmana patrei.”

To my thinking, a homosexual who cannot alter his behavior but remains chaste because of his religious commitment and faith is absolutely heroic, a role model for all. Perhaps today we lack such role models but at one time we had them. Yosef withstood the blandishments of Potifar’s wife notwithstanding all the good reasons (even some with religious overtones) that rang in his ears, and even though he wound up incarcerated for more than a decade as a result of his demurral. That is strength of character. Yosef is the exemplar of the Jew who is caught in the throes of sensual passion and does not succumb (Masechet Yoma 35b). Boaz refrained from committing any lascivious acts with Ruth, even though it could have been rationalized on some level. And both personalities pale before the superhuman willpower of Palti who did not touch his own wife because of his fear that she was still technically married to David. (I have simplified somewhat; see Masechet Sanhedrin 19b for the details.) Those who can harness the energy of an unquenchable passion and remain faithful to G-d are awe-inspiring. “Let those who love Him be like the powerfully rising sun” (Shoftim 5:31).

Rabbis should be encouraging fidelity to Torah. Rabbis should be teaching Jews about the virtues of self-control and moderation as the keys to faith and happiness. We need not pander to the young generation as if it is hopelessly degenerate and dissolute, as if they can never truly surrender to G-d’s will. Such is the death of Torah and the irrelevance of the rabbinate. Such is the evisceration of the function of Judaism throughout our history. A Jew is called upon to sacrifice; no one was poorer than Hillel (Masechet Yoma 35b) and yet he continued his Torah study in poverty. We would not say “ones rachmana patrei” for Jews who felt compelled to work on Shabbat a century ago (and some even today); commitment to Torah requires sacrifice and that sacrifice is asked of all of us in different ways.

It is disingenuous to claim that Halacha is pluralistic, in the modern sense that there is no one truth. The Talmud characterizes the disputes between the schools of Shamai and Hillel as “Eilu v’eilu divrei Elokim chaim,” “these and those are the words of the living G-d,” but then concludes that a heavenly echo decreed “the law is according to the house of Hillel.” Yes, there was finality, as there is overwhelming decisiveness and consensus in halacha; it is not an intellectual or spiritual free-for-all. “Anything” does not go. The disputes are always along the margins, in the details of some of the laws and customs. The consensus that dominates halachic practice in the laws of Shabbat, Kashrut, Taharat Hamishpacha, Tefila, and other areas is what unites the Torah world. The differences are mostly nuances that have endured for centuries and does at all impinge on our capacity to pray, eat, learn and live together. We can debate how long to wait between meat and milk but not whether a cheeseburger is kosher.

There is a real danger that people will construe themselves as “coerced” by their internal natures – and molest, steal, murder, cheat, gossip and breach all the norms of Torah because, after all, that was the nature with which they were born and, according to modern notions, they are not expected to control and refine. We all are subject to sin, and we all must exercise discretion in not seeking to pry into people’s private lives and judging them accordingly. But it is far better to sin out of lust (and sincerely repent and then stop) than to sin intellectually by writing out of the Torah one or more of its prohibitions. The former is a human being beset by frailties, like all of us; the latter is a heretic.

Similarly, what a rabbi might advise an individual in private is not necessarily appropriate for an entire group or for readers of a newspaper. In fact, sensitivity to the individual is much more important than sensitivity to a group, notwithstanding the modern obsession with “group identity.” It is the individual who deserves our attention, respect, sympathy, not the group with which he identifies or who claims her as an adherent. But our sensitivities and sensibilities should never be projected onto G-d and can never replace the Torah. All we know of G-d’s will is what He told us, and that is what makes the Jewish people special, unique and worthy of His protective hand. We modify, reform or modernize His word and His morality at our peril.

I am saddened by the reality of people suffering with the allure of sin and illicit desire as I am by the implications of a distortion of Torah law. Jews in this situation deserve our sympathy and our help, but also our honesty. And if rabbis do not preach G-d’s values, and do not speak the language of right and wrong, permissible and forbidden, then who will?