​ 
 
Losing My Religion (REM) / lyrics by Michael Stipe

Oh, life is bigger it's bigger than you and you are not me
The lengths that I will go to 
The distance in your eyes
Oh no, I've said too much
I set it up

That's me in the corner, that's me in the spotlight
Losing my religion trying to keep up with you and I don't know if I can do it
Oh no, I've said too much I haven't said enough

[Chorus]

I thought that I heard you laughing
I thought that I heard you sing
I think I thought I saw you try

As many of you know, before I became a rabbi I was a film librarian/archivist working at a variety of institutions around the Washington DC area.  The last few years I lived in DC I worked as Head of Film Cataloging at the Library of Congress near my home on Capitol Hill.  Before that, I commuted out to College Park, Maryland where I worked with the film and video collections first at the University of Maryland Libraries and then at the National Archives. 

The commute out to College Park from Capitol Hill took twenty-five minutes. It was of course a reverse commute, that went against rush hour traffic coming in to the city. The route was mainly local roads and not exactly the most scenic commute I’ve ever had. 

However, on that commute, there was one interesting site that often caught my attention, in part because it was placed smack in the middle of a traffic circle at the crossroads of Route 450 and Route 1 in Bladensburg, Maryland. I drove around that traffic circle every day of my commute and frankly it was hard to miss the 40-foot tall concrete cross erected in the middle of that traffic circle and known as the Bladensburg Cross, or simply the Peace Cross.

Since 1925, this cross has stood as a tribute to 49 local soldiers who gave their lives in the 1st World War. 89 years after the dedication of the Cross, a lawsuit was filed, claiming that the memorial, which sits on public land—was offensive. The lawsuit asserted that the expenditure of public funds to maintain the memorial violated the Establishment Clause of the First Amendment-- a clause that prevents government endorsement of a religion.[1] In other words, placing this cross on public land, could easily give the impression that the government endorsed Christianity – since a cross is a known symbol of Christianity. The respondents of the lawsuit asked the Court to relocate or demolish the Cross or at least remove its arms so it wouldn’t look like a cross. The 4th Circuit of the U.S. Court of Appeals agreed with that assessment.

One of the Constitution’s most important declarations of freedom is stated in the 1st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Other freedoms covered in the 1st Amendment include freedom of speech, the press, and peaceful assembly.[2]  

The 1st Amendment also includes two clauses. As I mentioned above, the Establishment Clause prevents government endorsement of a religion and the Free Exercise Clause gives citizens the freedom to practice their religion.  Although today these two clauses are widely embraced, they were radically new at the time of our nation’s founding.

The Puritans may have left England for the new world to escape the restrictions of the Church of England, but once they arrived here, they tended to persecute others as a way to advance their religion. When they threw Roger Williams out of Massachusetts because of his liberal ideas on religion, Williams headed to Rhode Island where he established a new community that did not require individuals to follow a particular religion and the government had no control over religious beliefs.  William Penn, George Mason, and James Madison also wrote basic concepts of religious liberty into Pennsylvania and Virginia laws. [3]

However, Delaware, Georgia, Maryland, Massachusetts, New Hampshire, New Jersey, North Carolina, South Carolina, and Vermont mandated all public officials to be Protestant Christians. Several states went further and required a sworn adherence to Christianity.  Even in religiously liberal Rhode Island, Jews were not allowed to vote, but their status as merchants and economic contributors protected them from overt discrimination.[4]

In any case, the Establishment and Free Exercise clauses represented an implicit promise to Jews and other minority faiths, that the New World would give them the opportunity to exercise their faith freely. In a letter to the Hebrew Congregation in Newport, Rhode Island, President George Washington wrote: “For happily the Government of the United States gives to bigotry no sanction, to  persecution no assistance.”[5]

But, even with the adoption of the First Amendment, some leaders continued to insist the United States was a Christian nation. Daniel Webster argued before the Supreme Court that “the preservation of Christianity is one of the main ends of government” and called schools quote “for the propagation of Judaism” unquote, illegitimate.  In the 1892 case involving the application of a federal law forbidding the importation of foreign contract laborers, Justice David J. Brewer opined “We find everywhere a clear recognition of the same truth: This is a Christian nation.” [6]  
 
Religious tolerance was enshrined in the Constitution thanks in large part to the influence of British philosopher John Locke and our 4th president James Madison. Locke believed that government–imposed religious beliefs stifled the freedom of those in the minority. Back in America, it was James Madison who drafted the 1st Amendment.[7]  

With the implementation of both the Establishment and Free Exercise clauses, it would seem the First Amendment’s goal of protecting freedom of religion would not be controversial.  But, when we look more closely, for example at the Bladensburg Cross example, it becomes a bit clearer that freedom of religion remains one of the most contentious parts of the Constitution in both the political and judicial spheres of the United States government.[8]  

The Peace Cross law suit ended up in the Supreme Court where seven justices voted to reverse the 4th Circuit’s decision. Among those seven were liberal justices Elana Kagan and Steven Breyer.  Despite the fact that the cross has long been an important Christian symbol, the Supreme Court argued that the Bladensburg cross had become a prominent community landmark and there had been no evidence of discriminatory intent in the selection of the design. The two dissenting justices, Ruth Bader Ginsburg and Sonia Sotomayor insisted that the display of a cross as a war memorial cannot be re-rationalized as a secular, generic or universal symbol of sacrifice in wartime. The cross belongs to Christians as a symbol, and excludes others.

The belief behind the Establishment Clause is the notion of the separation of church and state. But, in truth, there is no clear dividing line between these two categories.  For instance, as in the case of the Peace Cross, the Supreme Court has held that some public prayers and some religious displays on public property are constitutional.[9]  

At the Constitutional Convention in Philadelphia James Madison opposed the explicit protection of religious freedom, arguing that if rights were enumerated in the Constitution it would reduce the vast protection of religious freedom he thought Americans were owed, because future governments might read those specifically defined protections narrowly rather than broadly.[10]  If you have been paying attention to some of the religious freedom cases that have gone before the Supreme Court recently, you might say that James Madison has proven to be an excellent predictor of the future.   

This past spring, the Supreme Court decided two major First Amendment cases dealing with religious liberty. One was on the topic of whether the state of Maine could refuse to fund religious schools, and the second was about whether a football coach could pray on the field after games. In both cases, the court decided in favor of the religious claim. While these decisions expand religious liberty and free speech protections, they weaken the establishment clause limitations which separate church and state.[11]  

In the case of the football coach, he genuinely felt the need to pray publicly on school time and on school property and apparently this was more urgently important than the interests of students and their parents seeking to be free from religious coercion by the government. The school was willing to let him pray anywhere he wanted in the school but the coach chose the 50-yard line. As Justice Sotomayor remarked: I don’t know any other religion that requires you to get at the 50-yard line, the place where post-game victory speeches are given. What religion requires you to do it at that spot?[12]

Back in 2020 Justice Neil Gorsuch led the way on what is without a doubt the single most important guarantee of employment protections for LGBTQ workers. Even so, there is a pretty good chance that down the road the religious and ministerial exemptions will be used when schools fire gay workers for religious reasons and then say that’s our ministerial exemption—meaning religious institutions have discretion over whom they employ as “ministers,” unconstrained by anti-discrimination laws.[13]  

Dahlia Lithwick, who writes about the Courts and the law for Slate Magazine, hosts the podcast Amicus, and has the great distinction of being referred to by the late Justice Ruth Bader Ginsburg as spicy, responded to this phenomenon with a take on a verse from the Book of Job -- The court giveth and the court taketh away.[14]

This is already happening in cases like the Colorado baker who refused to bake a cake to celebrate the marriage of a same sex couple because of a religious objection. As Lithwick notes, this is the hollowing out of the Obergefell case, which legalized same sex marriage.  The Court giveth and the Court taketh away.[15]

Katherine Franke, a professor of law at Columbia University has suggested that in any conflict the current Court would honor religious liberty over every other right or interest, whether it was public health, or LGBTQ interests, or reproductive freedom. Because religion is explicitly named in the Constitution and those other freedoms or values are not, religion will win every time. [16]

All religious minorities in this country rely on American religious liberty. For Jews, rulings like overturning Roe and the football coach praying on the 50-yard line that allows for public Christian prayer as part of school athletics, are raising real fears that religious liberty for any faith other than Conservative Christianity is slipping away.[17]  

Or to quote Barack Obama in a statement he made about reproductive rights: No, you can’t deny women their basic rights and pretend it’s about your ‘religious freedom’, If you don’t like birth control, don’t use it. Religious freedom doesn’t mean you can force others to live by your own beliefs.

That's me in the corner, that's me in the spotlight
Losing my relgion trying to keep up with you and I don't know if I can do it
Oh no I've said too much I haven't said enough


[1] Corey Brettschneider. Religious Freedom (New York : Penguin Books, c2021) 98.

[2] Ibid. xiv

[3] “Religious Liberty in the United States,” https://tourosynagogue.org/history/religious-liberty-in-the-usa/#limits-of-tolerance

[4] Ibid

[5] Ronald Kahn, “Judaism,”   https://www.mtsu.edu/first-amendment/article/1368/judaism
 
 

[6] Ibid.

[7] Corey Brettschneider. Religious Freedom (New York : Penguin Books, c2021) xvi.

[8] Ibid. xxv.

[9] Ibid.

[10] Ibid. xxvii.

[11] Andrew R. Lewis. “The New Supreme Court Doctrine Against Religious Discrimination,” July 7th, 2022, https://www.washingtonpost.com/politics/2022/07/07/scotus-carson-makin-maine-schools-bremerton-football-coach/
 

[12] Dahlia Lithwick, “The Holy Morality of the Supreme Court’s Most Sympathetic Plaintiffs,” Apr. 27th, 2022, https://slate.com/news-and-politics/2022/04/how-religious-adherents-became-scotus-most-sympathetic-plaintiffs.html
 

[13] “Closing Conversation : Dahlia Lithwick and Micah Schwartzman,” 9:26, https://vimeo.com/457983916
 
 

[14] Ibid.

[15] Ibid.

[16] Dahlia Lithwick, “The Holy Morality of the Supreme Court’s Most Sympathetic Plaintiffs,” Apr. 27th, 2022, https://slate.com/news-and-politics/2022/04/how-religious-adherents-became-scotus-most-sympathetic-plaintiffs.html

[17] Daniel Bogard. “The Jewish Case for Abortion : How Overturning Roe v. Wade Threatens Religious Liberty,” June 30th, 2022, https://www.grid.news/story/politics/2022/06/30/the-jewish-case-for-abortion-how-overturning-roe-v-wade-threatens-religious-liberty/
​

I Won’t Back Down (Tom Petty)

Well I won't back down 
No I won't back down
You can stand me up at the gates of hell
But I won't back down
 
No, I'll stand my ground
Won't be turned around
And I'll keep this world from draggin' me down
Gonna stand my ground
And I won't back down

Hey baby, there ain't no easy way out
Hey I will stand my ground
And I won't back down And I won’t back down

We buried my father on the afternoon leading up to Rosh Hashanah in 2003.  Now, some rabbis say the High Holy Day season begins with Tisha B’Av – in the middle of the summer. Some say it begins with the Selichot service, a week before Rosh Hashanah. I have always believed the former but about a week ago, it occurred to me that whatever I might think I believe, since 2003, the High Holy Day season smacks me up the side of my head, on the day of my father’s yahrtzeit.

Avshalom Saul Smith (yeah you heard me right), Avshalom Saul Smith alav hashalom, may peace be upon him, was a civil engineer.  Now, when I say alav hashalom, may peace be upon him, I am wishing peace upon a man whose name Avshalom means father of peace. Suffice to say no name ever fit a man quite so well.  

Avisholum as some of his relatives called him, began his civil engineering career helping to build the New York Thruway and then went to work for a company named Porter & Ripa in Newark, NJ, where he was involved in the building of the Garden State Parkway. Porter & Ripa did a lot of work for the state of NJ and in the late 70’s it was discovered that the company had been taking the state of New Jersey to the cleaners—embezzling a million dollars by altering timesheets. Unfortunately, my father’s signature was at the bottom of a lot of these timesheets and he was asked to appear before a grand jury.

Just to be clear, my father signed these timesheets before they were altered. He did nothing wrong, and perhaps to ensure his “loyalty,” someone very high up in the company asked my father to lie to the grand jury.  I don’t think I need to say anything more than point you to any episode of the Sopranos to help you understand exactly what was going on.

In the end my father did the right thing – really the only thing he knew how to do. He told the truth.  Now, it’s easy to say that my father did the right thing, but as I got older I came to understand exactly what it took to do this right thing. Clearly, it was dangerous to lie to a grand jury. But it was just as dangerous, if not more so in this case, to defy this person so high up in the company and possibly put yourself and your family at risk.

But again, my father had no idea how to lie. Telling the truth was all he knew how to do. As Tom Petty wrote in the song I began with, my father would not; could not back down from his ethical beliefs.  Soon after, the company was taken over by forces that probably weren’t much better and many in the company, including my father, who at the time was 57 years old, were fired.

But, Avshalom Saul Smith was an excellent engineer and it didn’t take him long to find a job, despite his age. He went to work for the Louis Berger Company in E. Orange, NJ.  Now, East Orange wasn’t exactly an upgrade neighborhood-wise from Newark but it was definitely an upgrade in job opportunity. The Louis Berger Company was an international engineering firm and not long after he joined the company my father was sent to Portugal for a month. Soon after that, Louis Berger bid on a job in Israel to build an air base in the Negev. The air base needed to be built to replace an existing one in the Sinai, which would soon be given back to Egypt as part of the Middle East Peace Accords.

The Louis Berger Company won the bid and when my father was named project engineer for this job, my parents moved back to Israel for two years. 

For me, this has always been a story about doing the right thing no matter the cost and I’ve always held this story up as a model for how I needed to live my life.  My father was generally a quiet man but his actions spoke way louder than his words.

This is also a story about enduring difficult times on the path to finding your destiny and I don’t think my father could have found a more perfect destiny if he had chosen it himself. His destiny meant returning to the land of his childhood, to the land his grandparents made their home in the 1890’s and perhaps most importantly, his destiny was to help make Israel a more secure state.  That destiny would not have happened had Porter & Ripa been an honest company. 

In a well-known Talmudic story (BT Shabbat 31a), a non-Jew asks Rabbi Shammai to convert him saying:  convert me on condition that you teach me the entire Torah while I am standing on one foot. Shammai pushed him away….. The same gentile came before Rabbi  Hillel and Hillel converted him. He said to the man: That which is hateful to you do not do to another; that is the entire Torah, the rest is commentary. Go study.[1]

If we are looking for a single Jewish principle defining how we should behave, this isn’t a bad choice.  That which is hateful to you don’t do to others? If you hate it when others gossip about you, then don’t gossip about others.  This is the whole Torah? Well, while monotheism is at the heart of Judaism, if one believes in God but doesn’t practice what Hillel preaches, how can that person be considered a religious Jew?  The rest is commentary?  Well, all Jewish laws should in some way reinforce and at the very least, not negate, ethical behavior.  Go study? Understanding how to act appropriately is not necessarily a simple matter.  One of the more famous verses in the Torah says: Justice, justice you shall pursue. Reading this verse is not enough.  We need to study and figure out what exactly constitutes acting justly.[2]

Hillel wasn’t the only rabbinic sage to define Judaism in ethical terms. A century after Hillel Rabbi Akiva, the leading rabbi of his age, taught that the verse Love your neighbor as yourself is the major principle of the Torah.[3]  Like Hillel, Akiva believed that treating others fairly cannot be seen as one worthy act among many, but as the most important act.[4]

Certainly, a significant ethical essence or contribution made by the Torah is the Ten Commandments.  In addition to obligating Jews to affirm God, observe Shabbat, ban idolatry, and not take God’s name in vain, the Ten Commandments prohibits murder, adultery, stealing, bearing false witness, and coveting.  The Torah may talk about sacrifices, holidays, circumcision, etc. but the Ten Commandments are overwhelmingly moral rules regulating relations between human beings.  Morality is the essence of Judaism.[5]

Even before the Ten Commandments the Torah emphasized ethical behavior.  In explaining Abraham’s mission in the book of Genesis, God says:
כִּ֣י יְדַעְתִּ֗יו לְמַ֩עַן֩ אֲשֶׁ֨ר יְצַוֶּ֜ה אֶת־בָּנָ֤יו וְאֶת־בֵּיתוֹ֙ אַֽחֲרָ֔יו וְשָֽׁמְרוּ֙ דֶּ֣רֶךְ יְיָ֔ לַֽעֲשׂ֥וֹת צְדָקָ֖ה וּמִשְׁפָּ֑ט :
For I have singled him out in order that he may instruct his children and his posterity to keep the way of the Lord by doing what is right and just. (Gen. 18:19)

Abraham in turn, holds God to the same principle. When he fears God is acting unfairly in planning to destroy the cities of Sodom and Gomorrah, Abraham challenges God:
Shall not the judge of all the earth act with justice? (Gen. 18:35)[6]

Later on in the Tanakh, the Prophet Micah asks: What does the Lord require of you? To do justice, love mercy, and walk humbly with God (6:8) Micah doesn’t focus on faith, sacrifices, or other rituals but rather on justice, compassion, and humility. He doesn’t say walk arrogantly with God, but walk humbly with God.[7]

How timeless are the words of the prophet Jeremiah: Let not the wise man glory in his wisdom; Let not the mighty man glory in his might; let not the rich man glory in his riches.  But one should only glory in this: that he understands and knows righteousness on the earth.  For in these I delight, says the Lord. (Jeremiah 9:22-23)[8]

There are certainly examples in the Tanakh of people who refused to follow immoral orders.  Perhaps one of the more well-known stories is that of the midwives Shifra and Puah, who refused to follow Pharaoh’s order to kill the baby boys born to the Israelite women (Ex. 1:15-21). When Pharaoh confronts them they tell him a tale -- by the time we got to the women they had already given birth and we weren’t able to out carry your orders. It’s unclear whether Shifra and Puah are Israelite or Egyptian midwives. But either way, it took great courage to stand up to Pharaoh.[9]

On the flip side is the story of David and Bathsheba. After David impregnates Bathsheba wife of Uriah, one of David’s soldiers, he plots to cover up what he has done by bringing Uriah home from battle to sleep with his wife.  But Uriah swearing loyalty to the troops, doesn’t comply.  So David sends him back to the front and orders his military commander Yoav, who also happens to be David’s nephew, to make sure Uriah is killed in battle. Yoav, unlike Shifra and Puah, is not defiant. He follows David’s order and eventually Uriah is killed on the battlefield. David then marries Bathsheba.

As the Bible goes so goes current events. Each and every day, the news is filled with stories of people who like my father, do the right thing fully aware of the possible cost to their lives. Even if they aren’t putting their lives on the line, they know the life of this country is on the line. They do it knowing that while the cost for them could be great, the cost to our country could be even greater. On the other hand, there are certainly other public servants for whom that kind of courage has been sorely lacking.   

Holocaust survivor and psychotherapist Victor Frankl wrote: We who lived in concentration camps can remember the men who walked through the huts comforting others, giving away their last piece of bread.  They may have been few in number, but they offer sufficient proof that everything can be taken from a man but one thing: the last of the human freedoms – to choose one’s attitude in any given set of circumstances, to choose one’s own way.[10]

These days, perhaps more than any other in our lifetime, we need to choose wisely.
 
Well, I know what’s right
I got just one life
In a world that keeps on pushin’ me around
But I’ll stand my ground
And I won’t back down
 
Hey baby
There ain’t no easy way out
Hey I will stand my ground
And I won’t back down.
 
L’shana Tova u’metukah
Wishing all of you the happiest, healthiest and sweetest of New Years.
 


[1] Babylonian Talmud Shabbat 31a

[2] Joseph Telushkin. A Code of Jewish Ethics, vol. 1. (New York: Random House, c2006) 10-11.

[3] Jerusalem Talmud Nedarim 9:4

[4] Joseph Telushkin. A Code of Jewish Ethics, vol. 1. (New York: Random House, c2006) 12.

[5] Ibid. 13

[6] Ibid

[7] Ibid. 211

[8] Ibid. 14-15

[9] Ibid. 30-31

[10] Ibid. 30