Monthly Archives: August 2020

August 28, 2020 · 2:21 pm

Ben Sorer U-moreh Was and Will Be

This week’s alumni Dvar Torah is by Rabbi David Fried

Near the beginning of Parshat Ki Teitzei, we read the section of the ben sorer u-moreh (the wayward and rebellious son). The notion of executing an adolescent boy for what amounts to a number of misdemeanor offenses can be unsettling to the modern reader, and was no doubt to the ancient reader as well. (After all, no one else in the Torah is executed for so minor an offense.) Many like to take solace in the Gemara’s statement that “the ben sorer u-moreh never was and never will be” (Sanhedrin 71a). A morally problematic law is far less problematic when we are assured it has never and will never be put into place. Ironically, both lamdanim and academics like to latch on to this explanation, each for their own reasons: The lamdanim to promote the value of purely theoretical Torah study and the academics to promote the idea of “Rabbinic nullification,” the claim that the rabbis have the power to intentionally darshen out of existence any law they find morally problematic (often with the implication that today’s rabbis should do the same).

The problem with hanging our hats on “it never was and never will be” is that if one examines the Talmudic passage that says it, it very much appears to be a minority opinion. There is an anonymous beraita that makes such a statement about three different laws in the Torah (ben sorer u-moreh, ir ha-nidachat—the entire city that turns to idolatry, and bayit ha-menuga—the leprous house). In each of the cases, the Gemara ascribes the statement to the opinion of a lone tanna, whose definition of the relevant categories in each of the cases are so precise as to render the likelihood of an actual case occurring virtually impossible. In ascribing the statement to a lone tanna, the implication is that the other tannaim did not have such strict requirements. Indeed, in each of the cases, the Gemara’s discussion ends with quoting someone who says they actually saw the thing happen. Furthermore, in each of the cases, the Rambam rules against the opinion that the Gemara associates with the statement of “it never was and never will be.” It seems clear that the Rambam read “it never was and never will be” not as an endorsement of the tactic, but as a reductio ad absurdum. God does not give us laws that will never be practical. If God just wanted to teach us some theoretical lesson, God could have found another way to do so. An interpretation of a divine law that renders its application impossible is a prima facie basis for rejecting that interpretation.

Without “it never was and never will be” at our disposal, we are forced to grapple with the actual moral implications of this law. Indeed, the Mishnah already attempts to grapple with this, explaining that the ben sorer u-moreh is “judged based on his end” (Sanhedrin 71b). Someone who is already stealing at age 13 to feed his addiction to meat and wine will no doubt eventually come to murder over it, so we execute him now before he has a chance to commit the murder. Now, this is still a rather unusual explanation. We do not generally execute people for crimes they have not yet committed. To help us understand this, the Mishnah (Sanhedrin 72a) quotes another example of someone who is “judged based on their end.” If one person is pursuing another to murder them, they may be killed to protect the intended victim. Is this not a clear example of killing someone for a crime they have not yet committed? What is the ben sorer u-moreh but an extended pursuer? If we know for a fact that someone’s life is in danger (even if, as in the case of the ben sorer u-moreh, we don’t know who), we have a right to kill the assailant, even far in advance.

Or do we? The Gemara, on Sanhedrin 74a, records the opinion of Rabbi Yonatan ben Sha’ul that one may not kill a pursuer if it is possible to save the intended victim without killing them, e.g. if one can save the victim by injuring a limb of the pursuer instead of killing them. (While not everyone agreed with this opinion, it is clear that it is the accepted opinion le-halakhah—see Shulchan Arukh Choshen Mishpat 425:1.) What would it mean to apply this limitation in the case of ben sorer u-moreh? The Gemara (Sanhedrin 71a) offers a second possibility for what the beraita could have meant when it said “the ben sorer u-moreh never was and never will be.” In this possibility, the basis for the beraita was not in the technical details of the law of ben sorer u-moreh, but in human psychology. “Rabbi Shimon says: Just because he ate a tarteimar of meat and drank half a log of Italian wine, his parents are going to take him out to be stoned?!” Rabbi Shimon highlights that in order to prosecute anyone as a ben sorer u-moreh the parents have to be willing to press charges. Sadly, I’m sure we’ve all read stories in the news of parents who have murdered their children, but aside from these extraordinarily abusive exceptions, it seems like a fairly good assumption that the vast majority of parents are not going to press charges to get their son executed, even if he is somewhat delinquent. If we read Rabbi Shimon’s statement in the context of the law of the pursuer, however, there may be more to it than this. It is not merely about a parent’s love for their children. Pressing charges on your son as a ben sorer u-moreh is to totally give up on him. It is to say, “I am so certain my son will grow up to be a murderer that the only way to protect their future victims is to kill him now.” If you believe there is any way your son might be turned away from this life of crime without killing him, it would not merely be undesirable to press charges, it would be forbidden. This approach, I believe, gives us a healthier way to navigate Torah laws that we find morally challenging. We cannot turn the “the Rabbis” and expect them to wave some kind of formalist wand to make them disappear. That would be substituting their judgment for God’s judgment. If God gave us a law, we must have faith that in at least some instances, it is the right thing to do, even if those instances may be rare. What we can do is work on our own morality; work on making sure we never give up on any child; work to ensure that we build a society where the kind of circumstances that call for such an unpleasant consequence never arises.

 

Rabbi David Fried (SBM ‘10) teaches Judaics at the upper division of the New England Jewish Academy (NEJA) and is an editor at theLehrhaus.com.

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August 28, 2020 · 1:19 pm

Beyond Pikuach Nefesh: Why We Need a New and Different Torah Conversation About Life During a Pandemic

by Rabbi Aryeh Klapper

Devarim 22:8 mandates that we build parapets on our accessible roofs to prevent people from falling to their deaths. This mandate is also framed as a negative commandment: “lo tasim damim b’veitekha,” “Do not place bloodguilt in your house.” On Ketubot 41b, Rabbi Natan cites this prohibition as the ground for banning Jews from keeping vicious dogs to guard their houses, and halakhic tradition generally understands it as a prohibition against leaving dangerous conditions on our property uncorrected.

Here’s the question: Why is such a prohibition necessary? Why isn’t it redundant? Isn’t leaving such a situation a safek shefikhut damim (doubtful homicide), and therefore prohibited anyway? Usually the danger is greatest for those living in the house; shouldn’t they be obligated to correct the situation because of pikuach nefesh?

One answer emerges from a question Rav Aharon Lichtenstein zt”l asked: Why does halakhah permit Jews to keep oxen?  It seems from the Mishnah and Talmud that oxen caused vastly more carnage than dogs of any sort! Rav Lichtenstein’s answer was that keeping oxen was part of normal life, and the Torah balances its desire to prevent harm with the value of living a normal life.

The Torah does not require or even want us to live a life organized entirely around staying alive. Lo tasim is needed to shift the burden of proof, so that endangering oneself or others requires a very strong justification (most likely on a sliding scale, in proportion to the extent of the danger).

In the early stages of the pandemic, poskim acted heroically to make sure that pikuach nefesh was given the priority it deserved in communal decisionmaking. Bold halakhic decisions were accompanied by fiery rhetoric about the centrality of lifesaving in halakhah. This hyperbole very likely saved lives.

Perhaps it still would, if people followed its implications consistently. But that is not where we are as a community. Instead, the embers of that rhetoric are generating feelings of hypocrisy or despair, and a sense that halakhah is irrelevant to real-world problems.

If minimizing risk of death were really the Torah’s absolute priority, no Orthodox school would consider reopening this fall. Everyone frum would wear masks everywhere, even when socially distanced outdoors. No one frum would walk into a grocery store. We would unanimously support shutting the country down, regardless of economic and other costs. Clearly this is not our reality.

The truth is that saving lives is a profound value in halakhah, but not the only one, or even paramount. The halakhic consensus is that a Jew must die rather than commit murder, idolatry, or adultery, or publicly desecrate the Name of G-d.

Those are the simple cases, where the tradeoff is immediate and the outcomes are clear. What does halakhah say when the tradeoff is between physical and mental health (some have argued that teenagers, and children generally, are suffering from a silent epidemic owing to lack of physical connection with their friends)? Between mortality rates in the short-term, and life expectancy over the next fifty years (which realistically correlates with the nation’s economic condition)? Between quantity and quality of life?

Halakhah also distinguishes between private and public decisions. For example: On Nazir 23b, Rav Nachman bar Yitzchak praises Yael for committing adultery to save Israel (see Tosafot Yevamot 103a), even though adultery to save individual lives is forbidden, and later authorities cite Yael as halakhic precedent even though the language used is “sin for the sake of Heaven.” Conversely, Rabbi Akiva and Rav Chanina ben Tradyon heroically martyr themselves for public Torah study even though Torah study is not one of “the big 3.”  But what is the boundary between public and private?  For example: if public policy demands that schools open in person, must teachers come in to teach? If public policy demands that everyone wear masks outdoors even when distancing, must people for whom mask-wearing triggers panic attacks comply?

Sefer Chasidim (Margolies 995) describes a person who takes a dangerous route to yeshiva, when a short delay would mitigate the risk, as “the righteous destroyed by their righteousness” (Kohelet 7:15).  What if the delay would last a year, or mean the loss of one’s only realistic opportunity for full-time study? What if it means that an entire community’s learning will be curtailed for the year, or longer?

These vital questions require careful and nuanced balancing of legitimately competing values.

Sanhedrin 14a glorifies Rabbi Yehudah ben Bava for martyring himself to preserve the original line of semikhah. That line has long vanished, and yet halakhah survives, so why was Rabbi Yehudah ben Bava’s martyrdom praiseworthy? Rabbi Shlomo Riskin reports an explanation from the Rav: Rabbi Yehudah ben Bava knew that his creative Torah contributions would be wiped out if his students were not empowered as halakhic authorities. “He did not sacrifice himself by giving them semikhah; rather, he acquired eternal life for himself.”  This suggests that the balancing act describes private decisions as well, and is legitimately affected by subjective values and considerations of religious identity and legacy.

The time has come to put away the hyperbole, and say openly: Since we don’t know how long the pandemic will last, we need to consider what risks are appropriate and necessary to sustain our community’s practical and spiritual infrastructures, and to nourish individual souls.

We cannot write that “safety is our only concern” – almost everything we do together as a community is riskier than not doing it. In-person school adds risk; in-person shul adds risk. We still don’t know enough about COVID-19 transmission, and about human behavior, to even evaluate risks reliably. The OU explicitly acknowledges this by allowing college students to attend JLIC events only if they sign a waiver of any claim to compensation for COVID-19 contracted at such events. If pikuach nefesh is the only value, why run events at all?

Any policies we develop will require profound communal buy-in to work. We live in a situation of literal areivut, in which every risk you take affects me, and vice versa. Minyanim, shiurim, and kiddushes can be run perfectly, but if one attendee plays indoor team basketball unmasked, or takes commercial flights for business, the risks escalate for everyone present. And things won’t run perfectly unless everyone is fully committed to making it run perfectly.

We need to decide clearly which risks are acceptable, and which unacceptable, and which precautions everyone must take regardless, and which leave space for individual choices.  Many of these decisions will require great subtlety and human sensitivity. All the subtlety and sensitivity in the world will be useless unless people are prepared to hear them with open minds and hearts.

We will get the necessary buy-in only if these vital values conversations take place openly and publicly, and ideally with the participation of the entire community.

To make this conversation happen, our communities also need to earn the deep trust of our rabbinic, professional, and lay leaders. We need to support them and express ongoing enormous gratitude to them for the amazing work they are doing and the heavy burdens they are shouldering. They are legitimately overwhelmed by emergencies such as the start of school and the Yamim Noraim. They have many good reasons for focusing on the short-term and for narrowing rather than widening their circles of consultation.

A crisis is also an opportunity. The possibility that COVID is a long-term issue gives us the space and urgency to rethink the roles of online education and online socializing, the ways in which our institutions are funded, how our communities can include people who are excluded from physical aspects of many of our core events (as the deaf have been excluded , and the high-risk – and those living together with the high-risk, including children – may be excluded going forward). With the specters of recession and mass unemployment looming, we must get vastly better at removing economic barriers to entry and full membership in our communities.

We must develop the education and infrastructure necessary for informed, thoughtful, Torah-based public discussion of these challenges and opportunities, so that we can move as a community from strength to even greater strength.

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August 21, 2020 · 1:35 pm

Truth and Consequences

by Rabbi Aryeh Klapper

Devarim 19:18 tells us that an impeached witness (ed zomem) in a capital case should be punished “in the same way that he plotted to do to his brother.” Should it matter whether the plot succeeded? Mishnah Makkot 5a tells us that the Sadducees applied poetic justice only when the victim was in fact executed; but our Sages held that a guilty verdict was sufficient, even if the perjury was exposed before the sentence was carried out.

Talmud Makkot 5a cites Beribi (likely a nickname for Rabbi Elazar Hakappar) as adding a twist: impeached capital witnesses are executed only if their plot is exposed before their victim is executed. (This position is not recorded in the Mishnah or the midrashei halakhah, but as the 20th century commentator and poseq Rabbi Dovid Tzvi Hoffman notes, it seems to be assumed by all subsequent rabbinic literature.) Beribi’s father wonders why halakhah sustains this counterintuitive result: Shouldn’t the witnesses be executed kal vachomer if their plot succeeds? He is reminded that he himself taught that Biblical punishments cannot be derived via kal vachomer.

One might reach the same result a different way. Perhaps the law of impeached witnesses is intrinsically counterintuitive, so that we cannot have any confidence in reason’s ability to determine where it applies and where it doesn’t.

My basis for this suggestion is Sanhedrin 27a. According to Rava, an ed zomem becomes an invalid witness from the date the perjury is exposed, not from the date of the perjury itself. The Talmud explains his reasoning as follows: “The entire law of ed zomem is counterintuitive: Why do you rely on (the impeaching witnesses)? Rely on (the impeached witnesses) instead! Since it is counterintuitive, it should be applied narrowly.” Abayay disagrees with Rava’s legal result, but probably only for technical reasons.

Nonetheless, commentators have spent the last millennia offering rationales for the law. For example, Ramban answers Rava’s question as follows. In halakhic criminal law, witnesses are believed even when they testify against multiple defendants. Halakhic impeachment occurs only when impeaching witnesses testify that the original witnesses were not present at the time and place of the crime; in other words, they charge the witnesses with the crime of perjury, rather than offering testimony about the original crime itself. THEY TURN THE WITNESSES INTO DEFENDANTS, and witnesses are always believed against defendants.

This explanation merely begs the question: Why are witnesses believed against defendants?

A very different approach is taken by the medieval exegete and Tosafist Rabbi Yosef of Orleans (Bekhor Shor). He argues that there is no reason to believe the second witnesses more than the first, but that we believe them anyway, because the alternative is a system in which perjury runs rampant. (Won’t impeachment run rampant instead? Mitch Klausner suggested in the Young Israel of Sharon parsha shiur that impeaching witnesses themselves must worry about being impeached, and so are not likely to come forward falsely.)

Ramban also offers two answers to Beribi’s father’s question. If the witnesses came between verdict and execution, that indicates that G-d intervened to save the defendant, who must therefore be innocent. But if they came too late to prevent the execution, G-d must not have cared to save the defendant, who can therefore be presumed guilty of this or an equivalent crime. Perhaps the original witnesses were “testilying” to ensure conviction of the guilty rather than seeking to convict the guilty.  Alternatively, perhaps we can be sure that G-d would not allow a halakhic court to execute anyone truly innocent (dam naki).

The medieval philosopher and Bible commentator R. Yitzchak Arama (Akeidat Yitzchak) challenges Ramban: Why should the law care about substantive rather than procedural justice? The witnesses sought to have the courts kill someone on the basis of false testimony. Why should it matter that the defendant “deserved to die?”

Ramban’s language of dam naki also seems almost deliberately ironic. Immediately after discussing Beribi’s position, the Talmud cites a beraita in which Rabbi Yehudah ben Tabbai takes pride in having executed an impeached witness “so as to confound the Sadducees.” In other words, he executed the witness immediately after the verdict was brought in. Shimon ben Shetach responds that he has certainly shed dam naki, as the law permits the execution only of impeached witnesses, plural.

One might respond that Yehudah ben Tabbai made a legal rather than a factual error, and that G-d only intervenes to prevent the latter. Indeed, the existence of “the bull brought to atone for a communal lapse” makes it impossible to claim that even the Great Sanhedrin is immune to legal error, even to legal error that causes more than half the Jewish population of Israel to sin. So Ramban must intend some such distinction.

But I confess to not understanding why G-d would prevent one kind of error and not the other. It seems to me much simpler to say that G-d does not prevent human beings from erring, because that would deprive us of responsibility for Torah.

Akeidat Yitzchak himself inverts Ramban. Beribi’s position is not based on Rabbinic infallibility, but rather davka on Rabbinic fallibility.  Akeidat Yitzhak develops his thesis via a fascinating but terrifying beraita cited on Sanhedrin 44a:

A story about a person brought out to be executed.

He said:

“If this sin (for which I was convicted) is found in me – let my death not atone for my sins;

But if this sin is not found in me – let my death atone for all my sins, and let the court and all Israel be innocent, but the witnesses – let them not find forgiveness eternally.”

When the Sages heard this matter, they said:

“To return him (and not execute him) is impossible, as the decree has already been decreed;

Rather, let him be killed, and let the chain be around the neck of the witnesses.”

The Talmud notes that the defendant’s compelling plea would not have been enough to cause such Rabbinic angst, so it must be that the witnesses to the crime also retracted (without admitting to having perjured themselves). Akeidat Yitzchak asks: What irreversible decree has been made?  He responds:

The whole matter is about protecting the honor of the courts, because what would ensue when their shame was publicized by returning this man on the basis of the witnesses’ retraction, when they erred by reaching a verdict on the basis of their original testimony. That day it would be known to all that neither their wisdom nor the hand of G-d prevented them from shedding dam naki on the basis of those witnesses. From then on, the power of the court would be inconsequential in the eyes of the people, and they would remove their yoke of reverence for them. The result would be great damage to the entirety of Torah and mitzvot which the courts are obligated to enforce. Therefore they saw fit that this one should be executed in consequence of their verdict, as if he was killed to sustain the public welfare, and let the chain be around the neck of the witnesses with regard to this evil to an individual. All the more so we must protect their honor when they have actually killed (on the basis of perjured testimony) . . .

Versions of Akeidat Yitzchak’s are cited with approval by commentators throughout the subsequent centuries, including Rav Dovid Tzvi Hoffman.

I confess to finding that profoundly disturbing. Credibility cannot be sustained by coverups, and coverups tend to produce much worse crimes. Letting successful perjurers escape leads to the rampant perjury Bekhor Shor feared. If we allow the execution of a possibly innocent defendant in order to maintain faith in the legal process, what should we do to reporters who seek to expose that truth? And so it goes . . . Our generation has seen the immense damage this approach causes, and how in the long run it destroys all credibility.

Taamei Hamitzvot, rationales provided for commandments, have no binding force. We can accept the Rambam’s Code while rejecting his Guide, if we wish, or accept the Shulchan Arukh without endorsing Rabbi Yosef Caro’s version of Jewish mysticism. Halakhah is often better left unexplained than badly explained, whether the poor fit is objective or subjective.

Of course, there are also explanations for the details of ed zomem that do not carry the same dangers (although they may carry others).  For example, a tradition with roots anteceding Akeidat Yitzchak explains Beribbi’s position as saying that witnesses who actually cause an execution are so terrible that they do not deserve the atonement automatically provided by execution. (I will leave for another day the question of whether that atonement can be voluntarily waived, as per the defendant in the story above.)

Finally, humility demands that we not simply dismiss concerns that our great predecessors found compelling. Sometimes the explanations for commandments are historically contingent, and should be. Maybe the concerns are genuine, but the balance of values changes. Maybe we are missing something critical.

The question we should then ask ourselves is: How do we prevent transparency from generating disproportionate loss of faith in public institutions? After all, the laws of lashon hora teach us that an isolated truth can contribute to an overall false picture.

I believe that we – by which I mean separately the people of the United States, and the Jewish community – can develop the social maturity necessary to face our past and present flaws honestly without concluding that our past and present are so tainted as to be valueless, and must be torn down before any progress can be made. If I am wrong, perhaps Akeidat Yitzchak is right.

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August 7, 2020 · 1:02 pm

Week Six Summary of SBM 2020: The Shayla

by Rabbi Aryeh Klapper

We’ve just finished an amazing summer of learning at SBM with outstanding draft teshuvah presentations! The 2020 SBM Sh’eilah deals with the intersection of Halakhah and U.S. immigration law and policy. Fellows addressed broad questions such as the scope of dina demalkhuta dina generally, and specifically in a democracy; (whether there are) other halakhic mechanisms that better or additionally delimit the right of governments and/or the duties of citizens; and whether Torah and Halakhah are committed to underlying political theories such as those of Hobbes or Locke, or theories of justice such as that of Rawls. We discussed whether/how the concept found in rishonim that law must be equally applied can be extended to modern antidiscrimination law; how citizens should respond to a case in which a generally reasonable law yields an unreasonable and unjust outcome; whether a law can be binding on those it disenfranchises; whether halakhah grants legitimacy and authority to unjust government laws; and much more.

I can’t wait to share the final teshuvot with you (they’re due motzaei Yom Kippur)! Meanwhile, here is an excerpt from the draft I shared with the Fellows yesterday, followed by the sh’eilah. Your comments are very welcome as always.

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RAN to Nedarim 38a appears to ground dina demalkhuta dina (DMD) in power.  The king owns all the land, and therefore has the right to tell anyone: “Obey my rules, or I will expel you.” Therefore, RAN adds, DMD does not apply in the Land of Israel, since “All Jews are partners in the Land.”

RAN’s addition at first glance seems incoherent. The partnership of all Jews in Israel is a theoretical construct; in practice, the Roman Empire, or whichever empire held sway in the Land in RAN’s time, had the same power of expulsion there as it did elsewhere. So if power is the basis of DMD, why shouldn’t it apply in Israel as elsewhere?

The plain answer is that RAN is not based in power per se, but rather in legitimate power. Because the sovereign has the right to expel, therefore the sovereign has the right to set conditions for non-expulsion.

This generates three new questions. First, what gives the sovereign the right to expel? Second, is that right unlimited and arbitrary, or bounded? Third, does the right to set conditions create a duty of obedience to those conditions?

Astonishingly, there seems to be little if any discussion in our tradition of the first question. Rabbi Yekutiel Cohen, Av Beit Din of Ashodod, suggested that RAN constructs the governed as consenting, even if it is consent under threat of exile. But this proposal seems to founder on the Israel exception as well – Jews in Israel would proffer their “consent” under the same threat.

Therefore, RAN must believe that property rights in Israel precede the establishment of government authority, whereas property rights elsewhere are subsequent to that establishment. He adopts a quasi-Hobbesian approach in which all rights are conceded to the Leviathan state at its formation.  I say quasi because I don’t yet have evidence that he believes that one concedes rights other than ownership of real property to the state (leaving aside issues of conscience, which are obligations to a higher Sovereign).

An alternative read of RAN is that he is explaining only why DMD applies to Jews as an autonomous community of voluntary noncitizen residents, as they were in medieval Europe. He believes that citizens generally have property rights parallel of those of Jews in Israel. RAN’s comment therefore provides no guidance for Jews in the United States, where our community does not have legal autonomy, and we are individually full citizens.

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Dear . . . ,

You may not remember me, but I was a student in your 11th grade Talmud class in Rabbi D.Z. Hoffman High School in 2012.  Some of the things we learned in that class have stayed with me throughout, and I’m turning to you because of them, and because I know that you have a reputation as deeply learned, profoundly sensitive, and unswervingly ethical.

I remember your telling me about your grandfather, a German Holocaust survivor, overpaying his taxes each year to express his gratitude to America.  You argued that dina demalkhuta dina was more than a grudging accommodation to the reality of exile; in America at least, it was an expression of our responsibility to be the best of citizens. We spent several periods researching and then discussing whether speeding was a halakhic violation, and I argued very that strongly it was, which led to pretty serious family conflicts on the way up to the Catskills on Friday afternoons.

But I also remember that you brought in Rabbi Saul Berman on Martin Luther King Day to tell us about his experience being jailed in Selma, and that you introduced him as a halakhic hero. So you must think that there are times when disobeying American law is ok, or even necessary. It actually wouldn’t surprise me to learn that you were among those trying to form a barrier between police and Black Lives Matters protesters, even though that technically involves standing in places that have been made legally off-limits.

Here’s the thing – you may not know that I was adopted from abroad (Colombia) and converted as an infant. I didn’t know this at the time, but until 2001, adopted children of U.S. citizens did not automatically receive citizenship, and my parents never arranged for me to become a citizen, so I am in fact “undocumented.” This means that unless I buy fake ids, it will be hard for me to get hired, to get a driver’s license, to get on airplanes, and certainly to leave the country and come back. Do you think maybe that I’m allowed to buy these fake IDs davka because I’m not a citizen? Or do I have to leave as soon as I can, and apply for citizenship from abroad (which I’m unlikely to get), because it’s illegal for me to be here? I intend to pay all the taxes I owe, at least as long as the US maintains its rule that the IRS can’t share its records with immigration agencies.  I think that in a rational world everyone would realize that I should have citizenship; this is the only home I’ve known, and my parents are citizens, and the law has even been changed so that people never face my situation. But the controversy about Dreamers and DACA makes clear to me that I’m not living in a rational world.

Please tell me what I must do. Please also note that my mom’s lawyers told her that If anything positive is to happen, I need both my parents’ support and cooperation. We had a long conversation and we all agreed to follow your psak. I’m enclosing their letters. Please respond to all of us together.

Your student,

Yonatan Yaakov Rose

 

Dear . . . ,

I am Y.Y. Rose’s adoptive mother. I know that he has reached out to you about his immigration status, and I wanted to make sure that you know where I stand. You should know that Yosef’s father and I have divorced, and I have since remarried. Yosef’s father may write to you separately.

In the young, affluent Modern Orthodox community that I live in, almost everybody hires undocumented workers. The nannies, the construction workers, and so forth – all undocumented, and everybody knows it. I think most people pay cash and don’t withhold FICA taxes, but of course I can’t know that for sure. But it seems ridiculous to me to say that our community holds that immigration law is halakhically binding, especially when the law is immoral. We certainly didn’t think that about British Mandate law in Palestine!

So please just tell Yonatan that he can do whatever he needs to do to live a normal life here while my husband and I hire lawyers to straighten this out, which I’m sure we can do. Please tell him that he needs to cooperate with whatever the lawyers advise. This is still the United States of America, and I’m sure everything will work out just fine if we have a little time and don’t do anything precipitous.

Sincerely . . .

 

Dear . . . ,

I am Y. Y. Rose’s adoptive father. Let me tell you a little bit about myself.  I was born to secular parents, and became frum through Chabad. I was deeply influenced by the Rebbe’s commitment to educating non-Jews to follow the sheva mitzvot, but over time I started to feel that this was too narrow, in two ways: first, that we need to encourage morality and not just legalism, and second, we need to understand that in a democracy in which we have full citizenship, it’s not just about education – it’s about building a society together in which each of us fulfill our moral responsibilities. Because of this I am a regular participant in demonstrations for causes as disparate as preventing abortions and preventing police violence, and I’ve been arrested several times in those connections.

My son’s case, sadly, is not one of these big moral issues. It’s just one of those things that inevitably happen because law is a blunt instrument. Civil disobedience loses all meaning, and becomes dangerous, when people start disobeying the law out of self-interest, even when the law is wrong. Think of the people cutting chains to parks in Brooklyn so their kids can play during a pandemic!

So I can’t see how I could countenance supporting any illegal activities by my son or on his behalf, although I will do all I can to support him wherever his journey takes him. I hope you will tell him the same.

Sincerely . . .

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