Bo: Jewish Law and the Fourteenth Amendment

This D'var Torah was delivered at Minyan Masorti, Germantown Jewish Centre, January 16, 2016. Parsah Bo: Exodus 10:1-13:16 . There shall be one law for the citizen and for the stranger who dwells among you. Exodus 12:49 (NJPS) . How fitting that the ideal of equal treatment under the law be read from the Torah on this Martin Luther King Weekend. . In a Presidential campaign where the status of noncitizens is an issue, the politicians should step back and consider the values set forth in the Torah. . images-2 . Richard H. Hiers, Emeritus Professor of Religion and Law at the University of Florida, writes in his book, Justice and Compassion in Biblical Law, that “. . . Biblical law gave expression to a highly positive evaluation of human life, and affirmed the bodily and moral integrity of persons individually, in families and as essential for sustaining an ordered and just society.” (Location 1609) . The Bible implies that equal protection of the law should apply to all classes of persons, including various socio-economic groups and people we would today call ethnic minorities. Most consistently, impartial judgment or equal protection is applied in cases involving the poor, and sojourners or resident aliens. (Location 1606) . Equal protection is applied less consistently to gender-based discrimination and only to a limited extent to slaves, Professor Hiers concludes.  (Location 753) . I view the Torah as making a strong policy statement for equal protection for Israelites and gerrim—in today’s terms, citizens and aliens. . Exodus 12:43-48 defines citizenship and its privileges. Only Israelites and people who are circumcised may partake in the Passover offering.  Foreigners do not have the privilege of partaking in the Passover offering.  However, the Torah places foreigners under the same law as the Israelites. . Following are examples of equal protection under the Biblical law: . When a stranger resides with you in your land, you shall not wrong him.   The stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt: I the LORD am your God.  Leviticus 19:33 (NJPS). . You must not carry false rumors; you shall not join hands with the guilty to act as a malicious witness. You shall neither side with the mighty to do wrong—you shall not give perverse testimony in a dispute so as to pervert it in favor of the mighty—nor shall you show deference to a poor man in his dispute.  Exodus 23:1 (NJPS) . You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your kinsman fairly.  Leviticus 19:15 (NJPS) . Professor Hiers writes that equal protection meant equal liability under the law. Therefore, aliens who sacrificed their children to Molech would be subject to the same death penalty that applied to Israelites who did so. (Leviticus 20:2).  (Location 764) . Resident aliens who “blaspheme the name” would be just as accountable as native born Israelites. (Leviticus 24:16). (Location 766) . In the context of capital trials, Biblical laws were meant to ensure that guilt or innocence would be determined on the facts, not the economic or social status or the race or national origin of the accused.  (Location 1607) . imgres-2 . In an essay in the Jewish Study Bible, Professor Shalom E. Holtz of Yeshiva University writes: . “We do not have a deep understanding of how Biblical law was practiced and enforced.   . . . [S]ome scholars have suggested . . . that some of the legislation in the Bible was never meant to be observed but reflects an ideal—what the law should really be, even though it would be impractical (such as the jubilee year legislation in Leviticus 25).   This suggestion finds some support in other ancient Near Eastern law collections.”  (Location 107411-107414) . “Unfortunately, specific laws in the Bible (or the ancient Near East) are not marked as “real” or ideal. . . . [I]t is difficult to know which laws were meant to be broadly observed and which represented societal ideals,” Dr. Holtz concludes.  (Location 107417). . picture-22-1415899676 . Professor Christine Hayes of Yale University, in her lecture 10which is on You Tube, says that the Biblical laws carry a moral imperative because they came from God rather than being promulgated by a mortal leader. . Unlike the extra-Biblical law collections which deal almost exclusively with matters that are enforceable by the state, the Biblical laws deal with matters of conscience and moral rectitude. The Bible includes norms for human behavior as set by the Divine will, even though enforcement has to be left to individual conscience. . Every crime is also a sin. Law is the moral will of God . So what’s illegal is also immoral, and what’s immoral is also illegal. Law and morality are not separate, as we moderns tend to think they are or ought to be, right, in our society, Professor Hayes concludes. . Exodus 12:49 parallels the Fourteenth Amendment to the Constitution of the United States. . crop . The Fourteenth Amendment defines which people are citizens, and protects citizens from actions of the States which might abridge the privileges and immunities of citizenship. Next the Fourteenth Amendment extends its coverage to persons—not just citizens. A State may not deprive a person of life, liberty or property without due process of law. A State may not deny any person within its jurisdiction equal protection of the law. . Unlike the equal protection laws of the Torah, the Fourteenth Amendment was not inspired by God. It was drafted to clarify the status of the former slaves after the Civil War.   The Fourteenth Amendment is not a call to moral behavior. It is an act of the legislature, meant to be enforced by the civil authorities. . However, the Torah’s concept of equal protection of the law does appear in one modern document. I read from Israel’s Declaration of Independence: . imgres-12 . THE STATE OF ISRAEL . . . will promote the development of the country for the benefit of all its inhabitants; will be based on the precepts of liberty, justice and peace taught by the Hebrew Prophets; will uphold the full social and political equality of all its citizens, without distinction of race, creed or sex; will guarantee full freedom of conscience, worship, education and culture.      *    *    *    * In the midst of wanton aggression, we yet call upon the Arab inhabitants of the State of Israel to return to the ways of peace and play their part in the development of the State, with full and equal citizenship and due representation in its bodies and institutions . . . . . Let us recommit ourselves to the Biblical principle of equal protection under the law in how we treat our fellow citizens and the noncitizens among us.