Over two historic days last week, the United States Supreme Court radically reconfigured our legal and political landscape. Even if its rulings on abortion and carrying concealed weapons in public places were expected, the combined impact of the two decisions handed down last Thursday and Friday made crystal clear the dangers to life, liberty, and the pursuit of happiness manifest in our highest court. Commentaries on the recent SCOTUS decisions and their implications for American society are proliferating across media platforms. In this reflection, I want to offer a perspective colored by a traditionalist Jewish sensibility. For the present crisis presents stark and fundamental challenges to values that our sacred tradition has considered paramount.
The supreme mitzvah, or religious imperative, in Judaism is pikuach nefesh, the safeguarding of human life. All other mitzvot—for example, observing regulations for Shabbat or Yom Kippur—are to be suspended whenever a life is endangered so that the person whose survival is threatened can receive medical care immediately. Our rabbinic sages throughout the centuries have bequeathed to us a religious and moral worldview that recognizes occasional conflict between competing values, sometimes requiring tragic and painful choices. Yet their fundamental commitment to the principle of pikuach nefesh was never diluted or qualified.
In contrast, what moral commitments were revealed in the two Supreme Court decisions from last week? (Here I will be referring to the majority opinions; the dissents in both cases—by Justices Sotomayor, Breyer, and Kagan—offer compelling counterarguments.) In the first ruling, striking down a century-old New York law restricting the concealment of weapons in public places, the majority widened the application of the Second Amendment to the Constitution. Building on earlier affirmations of a constitutional “right to bear arms” by individual citizens, the majority decision in New York State Rifle & Pistol Association v. Bruen, extended that “right” beyond the home to areas where people congregate. Justice Clarence Thomas, writing for the super-majority of Republican-appointed justices, asserted: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. It is not how the Second Amendment works when it comes to public carry for self-defense.” In this instance, a uniquely American ethos of individualism, with the ownership and use of firearms symbolizing an abstract notion of personal freedom threatened by government-enforced limits, found expression in a legal ruling whose toll in innocent human lives is likely to be horrendous. The timing of this decision could not have been more shocking or telling, coming on the heels of the Buffalo and Uvalde massacres.
In Judaism, each human life is tantamount to an entire world. A classic rabbinic teaching, echoed in Islam, declares that saving one life is like saving a whole world, while taking one innocent life is like destroying an entire world. (Babylonian Talmud, Sanhedrin 37a) When a murderer terminates a life, the victim’s descendants throughout succeeding generations are also wiped out. And it is the community’s collective responsibility to ensure that human lives are not put at unnecessary risk. (See Deuteronomy 21 and BT Sotah 45b) This communitarian sensibility—with all individual rights derived from, and guaranteed by, a shared covenantal framework—is in direct contrast to the SCOTUS-majority notion of unfettered civil rights for individual citizens. On this basic point of moral principle, Judaism and America’s highest court are at odds.
The court’s latest interpretation of gunowners’ rights was made public just as the U.S. Congress was putting its final touches on a piece of legislation, the first in three decades, that restricts access to lethal weapons. President Biden quickly signed that bill into law, saying it promises to save lives. Let us hope that promise, that hope, is confirmed over time. A more dispiriting view is expressed in a June 26 editorial in The New York Times: “The best that gun control advocates can hope for after the Bruen ruling is what Congress passed: gradual legislative tinkering.”
I will return to the subject of fetishizing, even idolizing, weapons, and what a faithful Jewish response ought to be. But I want to shift now to the second, even more momentous, Supreme Court decision handed down the very next day. The 6-3 decision in Dobbs v. Jackson Women’s Health Organization was unprecedented: going against almost 50 years of established legal precedent, based on prior Supreme Court rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the majority ruling authored by Justice Samuel Alito overturned those previous decisions. In so doing, the court stripped American citizens of a right that had, before last Friday, been constitutionally grounded: the personal and private choice by a cisgender woman or a transgender man to either maintain or terminate a pregnancy.
In this instance, the notion of individual freedom to make such profound personal decisions was superseded, in the SCOTUS majority view, by two considerations in which, it is claimed, government has a legitimate interest. The first factor is the obvious one that, in the case of abortion, a second human life—the actual or potential life of a fetus—is at stake. The second factor overruling an appeal to individual liberty or privacy is a legalistic argument: Alito and his co-signatories claim that the jurisprudence reflected in Roe and Casey was “egregiously wrong from the start,” since the 14th Amendment to the U.S. Constitution—particularly its “due process” and “equal protection” clauses—did not specify abortion as a constitutionally safeguarded right. Many legal scholars have weighed in on the ramifications of such a claim, and I do not wish to enter that discussion here. I will only note that, once this line of argument is accepted, then other civil rights affirmed in prior Supreme Court rulings by appealing to the 14th Amendment are also at risk of being revoked, despite Alito’s assurance that these other precedents were not at issue in this particular case. These additional civil liberties include same-sex marriage, non-heterosexual intimacy, and the use of contraception. In his concurring opinion, Justice Thomas explicitly cited these precedents as illegitimate and in need of “reconsideration.” Understandably, alarm bells are sounding throughout the country.
What is a faithful Jewish response to this seismic reversal in American jurisprudence? I can think of two major considerations regarding the rescinding of abortion rights that are already being voiced publicly and are likely to snowball.
The first consideration relates specifically to Jews, but also to other minority religious groups. Since Jewish normative tradition, as codified in rabbinic law (halakhah), favors the health and welfare of a pregnant person over the “rights” or claims of a fetus—at least until the baby’s head emerges in childbirth, at which point both lives are equally valued—any other moral or legal standard imposed on Jews is a violation of our religious freedom as guaranteed by the First Amendment. Legal challenges to the SCOTUS ruling on abortion based on the free exercise of religion are already being considered by Jewish (and possibly other religious) institutions.
This first aspect of a faithful Jewish response to the “new normal” (as opposed to normative) regarding abortion rights reflects the particularistic aspect of our tradition, the spiritual and ethical elements that make Jews distinctively Jewish. As in all religious traditions, the particularistic dimension of Judaism is complemented by a more universalistic aspect. In Jewish terms, one can identify a creative tension between the Rabbinic Sages, whose voices speak to us from the pages of the Talmud, and the Biblical Prophets, whose stirring exhortations on behalf of the underprivileged form the foundation of western humanism.
In this quintessentially Jewish understanding of religious ethics, both the Divine and the Human are characterized by a commitment to inclusive justice and compassion (mishpat and tzedakah) that applies to the non-Jewish “stranger” (ger) and even to righteous individuals surrounded by evildoers, as in Sodom and Gomorrah. (See Genesis 18:19) A classic rabbinic teaching asserts that we Jews are supposed to be identifiable by others through our being rachmanim b’nei rachmanim, the merciful descendants of merciful ancestors. The quality of rachmanut, compassion, or chesed, lovingkindness, is understood to be a defining attribute of a true Jew, just as it is deemed a primary attribute of the Divine. (See, for example, BT Beitzah 32b and Yevamot 89a)
Following the most recent SCOTUS rulings, we Jews have our work cut out for us, both as Jews and as American citizens. A preference for the “rights” of gun owners over vulnerable people in public settings, coupled with a preference for fetal “rights” over the life, liberty, and welfare of pregnant individuals, reflects a warped view of both legality and morality that a committed Jew must challenge vigorously. And we need to find allies across religious and political boundaries to forge political coalitions that can reset our national course.
As we explore interfaith alliances to counter the reactionary forces trying to take our country backwards, with many human lives at risk, let us consider possibilities that may not be immediately evident. For example, we tend to generalize about the stance of evangelical Christians regarding both gunowners’ rights and abortion. It is true that many evangelicals endorse the view that the Second Amendment protects an American’s “God-given” freedom to own any lethal weapon available. At the same time, many, if not most of these same Christian believers grant personhood status to a zygote and privilege the “rights” of any fetus, thereby effectively denying a pregnant person the freedom to decide whether to maintain or end their pregnancy. This blatantly inconsistent position that they hold between honoring individual freedom in one instance and upholding government intervention in another ends up costing innocent lives among those already born. For traditionally oriented Jews, such a religious stance is untenable, going against the fundamental commitment to pikuach nefesh.
Still, such generalizations are flawed, since there is a range of evangelical positions on many controversial issues; and we need to seek political allies where we can find them. Let me illustrate this point with a personal story. I currently reside in western Connecticut, one town over from the site of the Sandy Hook school massacre in December, 2012. Twice I have been inside the Newtown Congregational Church for events commemorating this horrific tragedy. On the first occasion, I spoke at an interfaith memorial service. The second gathering was a screening of Abigail Disney’s powerful film, The Armor of Light, followed by a discussion with Ms. Disney present. The documentary features two remarkable individuals, both devout evangelical Christians. Rev. Rob Schenck, who was also at the film screening, has been a dedicated pastor and activist in evangelical circles for decades, leading campaigns against abortion that affirm the “right to life” of unborn fetuses. His interlocutor and ultimate ally in the film is Lucy McBath, an African-American mother whose teenage son, Jordan Davis, was murdered by an indignant white man who fired bullets into the car where Jordan and his friends were playing music too loudly and offensively for the gunman. Since the film was released in 2015, Ms. McBath was elected to Congress, filling the Georgia seat once occupied by Newt Gingrich.
“During one of our many conversations, captured on film, [Lucy] got to the crux of the problem when she said to me, ‘We have replaced God with our guns.’ Lucy’s insightful comment connected directly to the thesis of my [doctoral] dissertation on the danger of political idolatry. Had we, as Americans—and, more specifically, as Christians—begun to idolize guns in their power to save us from perceived threats to our lives—or, worse, our way of life? Were we trusting in objects to protect us as we capitulated to our imaginary fears?…By venerating the Second Amendment, we evangelicals were in danger of violating the Second Commandment.” (emphasis added)
Rev. Schenck’s 2018 memoir, Costly Grace (page 273)
Rev. Schenck identifies the central spiritual issue in the debate over guns. According to the Bible, idolatry is the paramount sin. If we idolize the works of our hands, turning guns or other forms of weaponry into sacred emblems, no legal or philosophical argument can put a kosher stamp on such a fundamental transgression.
We Jews need to partner with courageous religious leaders outside our faith community like Rob Schenck, to spark a serious conversation in this country about issues of faithfulness, freedom, and responsibility. No other nation suffers from an epidemic of mass slaughter. It is a social pathology rooted deeply in the American psyche, and its healing requires spiritual remedies. We need to balance our fixation on personal independence with a profound acknowledgement of our collective interdependence within God’s sacred ecology. Such an acknowledgement can serve as the basis for interfaith action on issues like gun safety, abortion, and many others.
American politics are broken, characterized by zero-sum, take-no-prisoners attitudes within opposing camps. And now the highest court is dominated by ideological extremists, so expecting a quick fix from our politicians is even more unreasonable. It is time for a multi-faith citizens’ campaign to re-envision our national course and discourse. Our secular leaders need help from spiritual role models who bear witness to shared values that place the sanctity of life above any partisan ideology. I call on those who champion the right to life of the unborn to follow Rob Schenck’s example and to join this effort by demonstrating their commitment to safeguarding the lives of school children, grocery store shoppers, and the faithful members of all houses of worship. Being “pro-life” cannot be restricted to the nine months of gestation within the womb. The lives, mental health, and independent agency of pregnant individuals, along with their loved ones and families, must also be protected.
Moses our Teacher, in Deuteronomy 30:19, offers a clear challenge to all believers:
“I call on heaven and earth as witnesses today that I have set before you life and death, blessing and curse; therefore choose life, so that both you and your descendants may live.”