Quicksilver כספית

Teasers about Tenafly eruv battle

Tenafly NJ was home to a big communal and legal brouhaha over a proposed eruv.  The eruv was proposed on June 1, 1999 and, once installation of the ritual boundary was underway in fall 2000, the eruv was opposed by the Borough of Tenafly. The lawsuit wound its way through U.S. federal courts, the eruv supporters won in the U.S. Court of Appeals (pdf file), and a final appeal was denied by the Supreme Court. Is it discriminatory for a government to deny Jews the opportunity to set up a ritual eruv? Does it violate the Establishment Clause for a municipality to authorize and assist an eruv?

At the Jewish Law website, you can read amicus curiae briefs by the Orthodox Union (joined by ADL, RCA, AJC, Hadassah, Reform Judaism) and Agudath Israel. The site also mentions two previous cases: Smith v. Community Bd. No. 14, 491 NYS2d 584, 128 Misc2d 944 (S.Ct. Queens County, 1985) and ACLU of New Jersey v. City of Long Branch, 670 F. Supp 1293 (D.N.J. 1987). Background on Tenafly for the media, with many good links. An atheist's brief recap and comment on the Tenafly case.

Read about the ACLU's involvement, which went from neutral to anti-eruv, I believe.

Take care and stay well-bounded,

Kaspit

PS  I found various legal articles that discuss the Tenafly case. These include:

COMMENT: USING AN ERUV TO UNTANGLE THE BOUNDARIES OF THE SUPREME COURT'S RELIGION-CLAUSE JURISPRUDENCE 5 U. Pa. J. Const. L. 831 by Shira J. Schlaff

SUMMARY (courtesy of Lexis): ... This comment uses the creation of an eruv, the name of this procedure, as a case-study to display the ambiguities of current First Amendment law and the need for more specific guidance from the Supreme Court on what the Establishment Clause permits and forbids and what the Free Exercise Clause requires. ... An eruv should also pass Establishment Clause scrutiny even if it is considered speech, and no other groups are permitted access to the forum since it passes the Lemon and endorsement tests even if there is no additional purpose of complying with the Free Speech Clause. ... If a restriction on an eruv fails the reasonableness test that would most likely be applied if a wide variety of groups are denied access and restrictions on other forms of speech do not, permitting an eruv is not "preferential," but neutral. ... Since an eruv would almost always be less obtrusive than any other request, a city cannot permit other groups to have access, and deny access to eruv seekers on the grounds that its ordinance is narrowly tailored to the compelling interest of avoiding visual clutter and maintaining control over city property. ... " In Lukumi, the Court noted that the Free Exercise Clause protects against governmental hostility which is "masked as well as overt. ...

ARTICLE: A Matter of Constitutional Luck: The General Applicability Requirement in Free Exercise Jurisprudence by CHRISTOPHER C. LUND (26 Harv. J.L. & Pub. Pol'y 627) Excerpt:

The general applicability test puts center stage the existence of secular exceptions (and thus the existence of secular burdens) in determining whether a religious claimant should get an exception. ... Other cases, such as Tenafly Eruv Association, Inc. v. Borough of Tenafly n90 and Rader v. Johnston, n91 also expose the role that demographic factors can play in exemption analysis. In the Tenafly case, a group of Orthodox Jewish residents sought permission to attach lechis, which are thin black strips of plastic, along neighborhood utility poles. In doing so, the residents were attempting to create an eruv, a ceremonial demarcation of a particular area. Creating an eruv allows Orthodox Jews, who are usually forbidden from pushing or carrying objects outside their homes on the Sabbath, to conceive of the entire space within the eruv as their home. Without an eruv, Orthodox Jews who have small children or who are disabled cannot attend synagogue on the Sabbath. n92 The Third Circuit granted the residents a preliminary injunction against enforcement of an ordinance forbidding signs on public places because the rule was not enforced in a generally applicable manner. The Third Circuit relied upon the fact that, among other exceptions, the Borough had allowed orange ribbons to remain on utility poles during a controversy over school regionalization and the fact that residents often nailed their address number signs to utility poles. n93 As these exceptions were necessary to the result, the clear implication is, of course, that if the Orthodox Jews had lived in a community where people posted their address numbers over their doors and where the school district was not embroiled in political controversy, the Orthodox Jews living there would have no right to an eruv. n94    (n94 I must confess that this discussion oversimplifies the case in Tenafly. The Borough made several other exceptions to the rule; it permitted local churches to post permanent directional signs, residents to post lost animal signs, and the local Chamber of Commerce to affix holiday displays. Id. at 151-52. My point, however, remains. All of the secular exceptions seem traceable to idiosyncratic factors about the Borough of Tenafly that may not exist in other communities. It seems instinctive to question the sense of an exemption system that makes religious claimants' rights contingent on such factors.)

NOTE: The Utility and Efficacy of the Rluipa: Was It a Waste? (31 B.C. Envtl. Aff. L. Rev. 723) by SARA SMOLIK

The Appeals Court found that the association could not sustain its claim that the ordinance infringed on its free speech rights. n216 The association argued that the lechis that marked the eruv's boundaries were so innocuous that even members of the Tenafly Orthodox community  [*751]  would not be able to recognize them for what they were; rather, knowledge of the eruv and its boundaries would be passed by word of mouth. n217 Because of this, the court determined that the act of affixing lechis to the utility poles was not "sufficiently imbued with elements of communication to be deemed expressive conduct" worthy of protection under free speech jurisprudence. n218 The court concluded that, in the absence of evidence that such demarcations convey an "attitude or belief," geographical boundary lines, like the eruv or fences and walls, were not expression protected by the First Amendment. n219

In reaching this holding, the Tenafly Eruv court was obviously concerned with the implications of making it easier for plaintiffs bringing free exercise claims to allege an infringement of hybrid rights. n220 The court expressed concern that, by analyzing the construction of an eruv under the Free Speech Clause, it would set a precedent that would easily allow plaintiffs and courts to side-step the essential holding of Smith. n221 "Moreover, if solely the act of erecting a wall separating the interior of a building from the secular world constituted 'speech,' every religious group that wanted to challenge a zoning regulation preventing them from constructing a house of worship could raise a 'hybrid' rights claim triggering strict scrutiny." n222 Commentators have expressed similar concerns that Smith's exemption for hybrid rights threatens to swallow the rule it creates. n223

Judgment day approaches...

Judges and judgments in the news. Tom DeLay indicted. A new Supreme Court Chief Justice sworn in, effectively ending the chance for a Rehnquist Memorial Amnesty inspired by Biblical law. A Rosh Yeshiva resigns because he violates Jewish law (i.e., the law against homosexual activity).

In Israel, a convicted forger refuses to resign as a judge. She also destroyed court documents. (Am I missing something here?!) Judge Hila Cohen, at least you've got chutzpah. "Your hands are sullied with blood and your fingers with sin" (Isaiah 59), the Talmud (bShab 139a) assigns this verse to corrupt judges and court scribes.

The same Talmud page teaches that it is permissible to teach boorish judges a less sophisticated form of The Law. In other words, if you aren't educated, you are in no position to take advantage of the leniencies of the erudite. So, there is one law for the unlearned, like the "Bashkarians", and a more comprehensive law for Bnei Torah, i.e. scholars of rabbinic law. In jurisprudence, this is the difference between law for the judges and law for the masses. I wonder if it also might shed light on R. Moshe Feinstein's 1981 responsum on smoking, in which he argues that smoking is permissible because "The Lord preserves the simple" (shomer peta'im HaShem) but that Bnei Torah shouldn't get addicted or let their children smoke.

Finally, judgment will come for the Red Sox. Saved by the last game of the season, the Red Sox face the White Sox. Repent all ye sinners in Red Sox Nation, else we will be wearing white -- the pure color of the High Holy-Days -- this week.

May you be sealed in the book of life,

Kaspit

Photo credit and Haaretz article, and another weird update on Judge Hila.

Siamese twins and an exceptional Jewish law ruling

Joined at the heart, it's painful to realize that these Israeli twins were doomed from start. Ha'aretz reports that the ultra-Orthodox parents would have used modern diagnostics (cf. my previous post). Furthermore: "A source close to the family said that had the diagnosis of the conjoined twins been presented in time, the parents would have sought rabbinical approval to stop the pregnancy."

It's not the first time that an Orthodox family had Siamese twins who shared a heart.

Philadelphia, 1977. The country's top halakhic authority, R. Moses Feinstein, agreed orally to let C. Everett Koop terminate one (non-viable) of the doomed twins so that the other (viable) twin could live. Here's the story as told by Rabbi Moshe Tendler. R. Feinstein apparently treats the non-viable twin as a rodef, a pursuer, who may be terminated (cp. fetus that threatens a mother's life). I believe that R. Bleich (Tradition 31:1, 1996) and R. Tendler also suggest another rationale, based on classifying the non-viable twin as a treifa, a person who cannot live for long. R. Shabtai Rappoport harmonizes the two approaches. From any standpoint, R. Feinstein's decision is highly controversial because it seems to permit the active termination of a newborn for the sake of another's life.

R. Moshe Feinstein's compassionate and sui generis decision has been used to critique the Catholic position in a similar, more famous Siamese twins case in England. (by Leora Rosen, Gregg Easterbrook)

Sobering case to consider, as we enter the gates of repentence, the gates of judgment, as The Supreme Judge decides who shall live and who shall die.

May you be written and sealed in the book of life, a redemptive Rosh ha-Shanah (Jewish New Year) to all,

Kaspit

Another link: essay on conjoined twins cases

Technologies diagnosed recently under Jewish law...

Touching and thoughtful post about ultrasound: Does Jewish law permit the use of ultrasound to diagnose the condition of the fetus? ADDeRabbi mentions one Rabbi's view: "His rationale is based on anecdotal evidence of stress caused by misdiagnosis, and some examples of cases where misdiagnosis resulted in unnecessary operations, from which the infant died. He felt that the potential costs far outweighed the potential benefits that may result from such a procedure." Read ADDeRabbi's sound rebuttal here.

"Leading Torah authorities signed the proclamation, including but not limited to Rabbi Ovadia Yosef, Rabbi Yosef Sholom Elyashiv and the Rebbe of Gur." What was the occasion? Approval under Jewish law for "kosher" cellphones. HT to Town Crier.

And this just in time for the Days of Awe and awesome diets: Maalox is among the pharmaceuticals getting a kashrut certification. HT again to TC.

Shanah tovah u-metukah, a sweet and happy new year,

Kaspit

The practice of halakhah: an eruv

For a personal look at the practical workings of halakhah, please read the wonderful story by Rabbi Publisher Student* about how he set up "the weirdest eruv on the block". Rabbi Gil Student's tale of the eruv** begins with the following anecdote, which speaks volumes I think about the actual practice of halakhah in daily life:

I live in Flatbush, in which there is an eruv that is a matter of great controversy.[1] In all likelihood, were it not for the social stigma I would use the "old" Flatbush eruv, which I believe my rabbe'im would approve but they refuse to take a stance on a controversial matter in a community in which they do not reside. When I first started davening at my current shul, the Flatbush eruv came up in conversation with the rabbi and when I asked him whether he liked it or not, he said that it depends who asks him. "What if I ask you?" "No, it's not for you." I can respect that answer. The "new" Flatbush eruv is not better than the old one in any meaningful way. Plus, it does not reach my block.

I was particularly struck by the response of the shul's rabbi, "No, it's not for you." Jewish law requires much more than systematic deductions from a compilation of rules. Judaism revolves around individual cases and situations; halakhah is quite casuistic. The controversy in Flatbush does have the advantage of making space for leniencies, depending on rabbinic discretion. Rabbi's Gil's account implies that another shul-goer might get the answer, 'Yes, that eruv is made for you.'

{New} Rabbinic controversies and minority opinions are recorded by the tannaitic literature (the Mishnah, the Tosefta and BT/JT baraitot). Why? Perhaps to rule out the path not taken; but also to leave a trace of alternative paths, their supporting authorities and plausible halakhic reasoning. Just like we see between generations of the U.S. Supreme Court, a dissent in one case may become the groundwork for a divergent decision (or, rarely, direct reversal) in a similar case in the next generation.

{New} To put Rabbi Gil's narrative in a social science context, I would turn to Pierre Bourdieu's Outline of a Theory of Practice. (Corrections welcome here as elsewhere.) Bourdieau is writing about different theoretical models of the social world. He offers an alternative to the mode of theoretical knowledge that he calls objectivist. Objectivist knowledge constructs rituals and social relations as if built upon formal roles, conditions, exchanges, and rules. When it comes to law, including halakhah ("Jewish law"), the typical objectivist model is legal positivism. (See Mishpat Ivri in Wikipedia.) Objectivist knowledge withdraws from the social experience, sets up a point of view that turns rituals and other practical activity -- such as daily practice of law -- into objects of observation and analysis, i.e. objectivist representations. Bourdieu (3f.) argues that objectivist abstractions exclude and deny certain experiences, including the ways that social agents really do have explicit knowledge of the structures of the social world. I think this means, crudely, that objectivists assume that the natives can't know as much as the 'objective' anthropologist. Bourdieu gives the natives far more credit.

Looking back at the eruv story, it is apparent that Rabbi Gil does have a sense of how halakhah functions in practice, how the experience of halakhah is fully objectified in its abstract rules. So he knows how to ask for a rabbinic opinion, who to ask, and he can observe the subtleties at play in his interaction with the shul rabbi. The shul rabbi, the eruv consultant(s) in the story, and, I dare say, Rabbi Gil are "virtuosos" who know both the legal postivist account of formal "Jewish law" as well as the lived experienced of halakhah as a practice. As Bourdieu writes:

... only a virtuoso with a perfect command of his 'art of living' can play on all the resources inherent in the ambiguities and uncertainties of behaviour and situation in order to produce the actions appropriate to each case, to do that which people will say "There was nothing else to be done", and to do it the right way. We are a long way, too, from norms and rules... but [objectivists are] never presuming to encompass in a catalogue of recurrent situations and appropriate conduct, still less in a fatalistic model, the 'art' of the necessary improvisation which defines excellence. (p8)

The language of rules and models, which seems tolerable when applied to 'alien' pracices, ceases to convince as soon as one considers the practical mastery of the symbolism of social interaction -- tact, dexterity, or savoir-faire -- presupposed by the most everyday games of sociability and accompanied by the application of a spontaneous semiology, i.e., a mass of precepts, formulae, and codified cues. This practical knowledge ... continuously carries out the checks and corrections intended to ensure the adjustment of practices and expressions to the reactions and expectations of other agents. (p10)

{New} Kudos to Rabbi Gil Student (and his various interlocutors) for the masterful, necessary improvisation of his "weird eruv" in Flatbush. From his account, it seems that he has indeed adjusted for "the reactions and expectations of other agents" in his neighborhood, who are both impressed and inspired by the virtuosity mobilized by Rabbi Gil and his co-conspirators. Kudos, too, for writing a fine, almost anthropological account of the transactions involved. Bourdieu would be pleased.

(For readers unfamiliar with an eruv, I expect to be writing more on this topic. Soon the daf yomi Talmud cycle will shift to the tractate Eruvin. Meanwhile, I wrote one post on Sabbath space and time, which has been "vanished" to Quicksilver: The Prequel here.)

Kol tuv,

Kaspit

* Insider joke based on comments to this Hirhurim post.
** An eruv is a ritually designated enclosure, a symbolic wall or fence that marks off an area in which some sabbath prohibitions on carrying do not apply. An eruv is an example of a legal fiction in Jewish law.

[1] For background on the Flatbush eruv controversy: Technical Jewish legal analysis at Hirhurim here (w/in-depth comments) and by R. Yisroel Hirsch. Analysis supporting the eruv here (HT here w/comments). Non-technical discussions by Gedanken (and again). R. Micha Berger at Avodah. The bitterness. Steven Weiss on the Manhattan eruv.

Risk-taking with a Talmudic frame of mind [DRAFT]

Risks in the modern sense are not systematically addressed by Talmudic thought. Last week, the Talmudic daf yomi reading (bShabbat 129b) covered the risk-taking principle of “The Lord preserves the simple” (shomer peta’im HaShem -- see smoking example). In this post, I’ll try to get a handle on the overall Talmudic context for risk-taking, esp. as it may apply to environmental and occupational hazards. I’ll analyze the shomer peta’im HaShem principle later. [This post and accompanying chart are in draft form. Feel free to comment or ignore…]

Risks are somehow wrapped up in dangers, yet risks are not the same as dangers. So, to judge environmental, occupational, consumer, and other health risks from Talmudic state of mind, we first need to ask, what are dangers?

From danger to risk. Danger is a common term throughout halakhic literature. Dangers include anything that works to one’s serious disadvantage, causing loss, pain, damage, or injury. Life is an awesome and marvelous gift, yet danger is omnipresent. Some basic human activities hurt, like giving birth and dying. Plus, accidents happen. And God happens. In Judaism, the omnipresent HaShem (d/b/a The Almighty) is awe-inspiring and fearsome. Merciful and kind, God is also utterly dangerous. Arguably, any serious loss or harm is caused by HaShem or, at least, under God’s watch.

Danger can be felt. You can have an intuition of danger or look at the white of its eyes. Stand in the eye of the hurricane and then experience its destructiveness. Danger is about as real as pain and death.

“Risk” is a step removed from danger. Risk is a concept, a category of understanding (Kant) that adds to danger another element: chance, hazard, probability. Risk = danger + probability. Probability is found in two types of Talmudic reasoning about uncertainty.[1]

However, in modern thought, probability goes beyond uncertainty. Thanks to probability theory, nowadays ‘risk’ mixes danger with a dose of randomness. For Judaism, randomness seems to cut against a pure theology of divine power. By the same token, randomness throws a wrench into the theological machinery of free will. Perhaps this explains why, in futile protest to the arbitrary and random, Jewish law (halakhah) does not quite have a traditional Hebrew term that translates into ‘risk’

Luckily, Jews tend to eschew systematic theology. Classical Judaism works more smoothly with archetypes than abstract definitions. So, in our narrative and legal discourses, traditional Judaism does not define ‘risk’ yet it talks about numerous risks. Though it may be theologically contradictory or paradoxical, the Talmudic tradition also allows for fate, chance and the random.

Talmudic writings on risk-taking are expressed through various literary forms, e.g. as principles, rules, and cases/examples. To gain an overview of the various Talmudic approaches to risk-taking, I am trying to organize the material in a chart. This DRAFT chart of Talmudic risks takes into account the type of halakhic norm (e.g., prohibition or advice), the subject’s response to the risk (e.g., prevent or take risks), and the risk characterization (level of danger + probability of harm). The chart shows the breadth of risks and range of rabbinic approaches; it also calls attention to the difficulty in formulating a consistent theory of risk-taking for Jewish law.

I would appreciate getting feedback on this work in progress, but it may contain errors so please read it at your own risk.

Good shabbos,

Kaspit

[1] Moshe Koppel analyzes two types of Talmudic reasoning about uncertainty: (1) When the rabbis can count up the possibilities in an uncertain situation, they calculate the odds. The halakhah is then decided with the majority (rov - RDIK). (2) When an uncertainty cannot be counted, I think that the sages reason from ballpark estimates. They then devise an ad hoc probabilistic rule to decide with the majority (rov - RDLK).

“Considering how dangerous everything is, nothing is really very frightening.” (Gertrude Stein)

Sources: [JD Bleich, M Slae, D. Cohen, M Koppel, N Rabinovitch, forthcoming...]

Bottle recycling program defended in Israeli court

Israel's "Bottle recycling consortium to continue" reports Haaretz. Yesterday an antitrust court decided to allow a specially-authorized monopolistic consortium to continue collecting returned bottle because dismantling the consortium would harm public interests. Read the whole story, which also noted:

"The organization Adam Teva V'Din [Israel Union for Environmental Defense], which joined the judicial proceedings as a respondent, announced yesterday that the court had acknowledged the importance of the Deposit Law and its implementation. However, the organization added that the law needs to be amended to oblige beverage manufacturers and importers to collect bottles actively, and to cover 1.5 liter bottles." Having drafted Israel's bottle bill in 1999, IUED seeks to improve the program (eg automatic deposit machines).

The first bottle bill passed in Oregon in 1971, pioneering one of the most effective methods of material recycling and reuse. As in Israel, U.S. environmentalists have struggled against bottling companies and retailers to expand the scope of the law, e.g. to cover bottled water.

When the High Priest dies... (Rehnquist Memorial Amnesty)

The Bible teaches us that, after the High Priest dies, there shall be an amnesty for those killers exiled to the six cities of refuge.*

In memory of Supreme Court Chief Justice William H. Rehnquist, would it not be fitting to institute an amnesty or moratorium for those on death row?

Do you think a Chief Justice Rehnquist Memorial Amnesty would appeal not only to opponents of the death penalty, but also to those trying to bring the Ten Commandments and other Judeo-Christian beliefs into our judicial system?

Maybe somebody should design a Chief Justice Rehnquist Memorial Amnesty logo to be placed on supporting blogs and websites?   I will list all supporting links here...

Kaspit

PS1. Would Justice John Roberts support Catholic teachings on the death penalty? Ann Althouse (and on Justice Scalia). Stephen Bainbridge. David Giacalone.

PS2. Supreme Court Justice John Paul Stevens against the death penalty

PS3. What might Jewish law (halakhah) teach about the death penalty in the U.S.? An article. Rabbi Asher Meir (citing R. Moshe Feinstein). Jewish-Catholic consultation. OU Rabbi Yosef Edelstein (from Wikipedia). Should Karla Have Been Executed? by Rabbi Chaim Steinmetz. On the electric chair: amicus brief, Bryan v. Moore, SCOTUS. (Jlaw) Lawrence Bush good article and Jewish Peace Fellowship analysis (tx Arieh).

Blogs: National Coalition to Abolish the Death Penalty blog and on SCOTUS. Injustice Anywhere blog, e.g. on Massachusetts Gov. Romney’s proposal. a Public Defender blog.

Eulogies: Here. Here. Catholics for Bush. Blogs for Bush. News. SCOTUS blog.

Other links: The Death Penalty Information Center.  Catholics Against Capital Punishment. Derechos Human Rights (excellent links). Alaska Justice Center site. Equal Justice USA.

* The 6 cities of refuge were to serve, in effect, as ancient prisons for those who had committed manslaughter. See Numbers 35:9-34, High Priest amnesty at v.28. Also Exodus 21:12-14, Deut. 19:1-13, Joshua 20)

Looting after hurricane Katrina per Jewish law

Is "looting" permitted under Jewish law (halakhah) after a disaster? I received this email:

I think a strong argument can be made that according to Jewish law, one can violate most laws in order to save one's life (except for the big 3--idolatry, murder, illicit sexual relationships) as the key is v'chai bahem [i.e., you shall live by the commandments -- K].  It seems that for some of the people, they have reached that state of desperation. Whether the situation is so dire that looting and stealing is justified would probably depend case by case.

This email then correctly cites Talmud Sanhedrin 74a and an article at J-Law "Stealing To Save Someone's Life" by Charles J. Harary, Esq. The article's conclusion doesn't do justice to its thorough halakhic analysis, but here is the bottom line:

In conclusion, the dominant view in Jewish law follows the Shulchan Aruch and the Rambam, which allows a person to steal or damage property of another to save his own life. Thus, one may break in to the house of another, or steal insulin if that was necessary to save his life. However, such a person must compensate the owner of the property.

The Jlaw.com article also compares Jewish law to Anglo- American law on stealing to save a life.

[I also wonder whether Jewish law might allow the taking of food and other perishable goods, which have been de facto abandoned by the owners (ye-ush). However, abandonment (ye-ush) usually cannot take effect unless the goods are outside of the possession (reshut) of the owner.]

This post does not refer to any specific cases of taking or stealing due to the Katrina hurricane and disaster. Certainly, Jewish law condemns indiscriminate theft and looting. Still, I agree that Jewish law may readily condone situations where people are in doubt about feeding and otherwise caring for themselves and their family. The situation in New Orleans is quite shocking.* Prayers...

Kaspit

* See the agonizing Times-Picayune editorial that "Hurricane Katrina has created a humanitarian crisis of unimaginable proportions."

Aaron Twerski, the first chassidic, "ultra-Orthodox" dean of a US law school

Aaron D. Twerski was installed today as dean at Hofstra law school. Haaretz article: "Ultra-Orthodox Jew is first Hassid named dean of U.S. law school.”

Prof. Twerski has written about Agent Orange, product liability including toxic torts, causation, consumer injury,and tort reform. Excerpts from his legal writings -- see the 1st comment -- show that Prof. Twerski cares about toxicality and corporate ethics. Plus, one Jewish joke. These excerpts may not be easy for non-lawyers, but they prove Dean Twerski’s familiarity with toxic products and poisoning. Enjoy. And....  mazal tov, Dean Twerski.

Kaspit