Jerome M. Marcus
The Jewish calendar’s curriculum has reached the point at which we are supposed to learn, again, or try to learn, about sinat hinam (baseless hatred). We are reminded, at this time of year, of the Talmud’s teaching (Yoma 9b) that the Second Temple was destroyed because the Jews were more interested in defeating or destroying each other than they were in protecting their Temple and their ability to come close to God there — even though these Jews were immersed in Torah study, the performance of mitzvot, and acts of loving-kindness. We are reminded that this shared commitment among Jews to the destruction of other Jews led to a holocaust and to a loss of Jewish sovereignty and self-determination from which we are still trying to recover two thousand years later.
But the calendar will march on, and in several more weeks we will be reminded of something else, which I suggest is related: the need to pray with people who are morally flawed. Anyone in shul on Erev Yom Kippur will hear the Sheliah Tzibur (prayer-leader) beg for permission להתפלל עם העבריינים — to pray with sinners.
I suggest that it is useful to put these two things together in an effort to confront the current bitter divide in American politics. There is something useful in these teachings, not only for the Jews but also for the non-Jews — and not only about how to daven together but about how to live together.
Chaim Saiman argued in these pages two years ago (see here) that the Jewish canon’s insistence on argument, and on the toleration of multiple points of view, could be used to help Americans learn to talk to one another when they disagree. Saiman, mentsch that he is, understood the current political divide as an intellectual one: people hold different opinions and need to learn how to respect people with different opinions from their own. Certainly every page of the Talmud is a lesson in how (or, occasionally, how not) to achieve that goal.
But it seems to be widely acknowledged that there is something else going on now, at least in America, that is worse than an intellectual disagreement: something more bitter, and so far more difficult to resolve. It is, truly, hatred of those on the other side of the political divide — focused not on the substance of the positions held but on the moral quality of the person holding the opinion.
One sees signs outside of houses proclaiming that “Hate has no home here.” For some, no doubt, those signs are there simply to announce disagreement with the KKK, or the National Socialist Party, or the Communist Party of the United States, or Boko Haram, and were put up in response to recent atrocities members of these groups have committed. For many others, however, what these signs really mean, or show, is that political disagreement is no longer only or even primarily about ideas.
This is evident from the widespread willingness to call so many people who voted for the other candidate — people who neither committed nor support the violence of neo-Nazis or Jihadists or the like — not only haters, but racists, fascists, murderers, traitors, and worse. At least for the people who are willing to label their opponents with these epithets — and it is those people, and such labelling, that are my focus here, because they are so common — those signs are really saying the exact opposite of their apparent message. What they are really saying is, “The people who disagree with me are haters, and they can’t come in my house.”
Thus these signs are understood to be needed by the people who put them up because so many people view a very substantial fraction of the voting population — essentially, the half that voted the wrong way for President — as evil. So the issue is not whether we would allow Nazis or Jihadists to daven with us or whether we should hate such people; most of us know no actual Nazis and no actual Jihadists. The question is whether we can avoid hating 50% of U.S.voters.
Here is where the teachings about sinat hinam, and about praying with sinners, have something to offer. As it is the day of all days when we are seeking to cleanse our own sins, one would think that on Yom Kippur the moral quality of the community’s messenger would be most important. When the mahzor insists that that be a day for praying with sinners, it is telling us that the only thing we need to know about the moral content of the people davening around us is that there are sinners among us. Beyond that general statement, we are not to evaluate the moral status of any individual person with whom we are davening. Instead, all we need to know is that we are obliged to share our space with people whose moral status is flawed.
Not only does the mahzor on the Yamim Nora’im insist that we pray with sinners, it puts into the mouth of the sheliah tzibur the public admission that he is one himself. One of the most moving parts of the davening during these days is Hineni — the sheliah tzibur’s introduction to Musaf on Rosh Hashanah. Here, the community’s leader pro tem, its representative before God, publicly proclaims himself a sinner: חוטא ופושע אני. “Please,” he asks God, “please don’t count my transgressions against the people who sent me up here to the amud to speak to You on their behalf.”
Why should this be? After all, it is a Jewish idea that the moral state of a rav is indeed particularly important — that he must not only appear to live his life according to the Torah but he must, within himself, embody the Torah’s ideas: כל תלמיד חכם שאין תוכו כברו אינו תלמיד חכם — any Torah scholar whose insides are not consistent with his outside is not truly a Torah scholar (Yoma 72b). We do not hold by the apocryphal account of Bertrand Russell’s insistence that he could be a brilliant writer about ethics but lead an unethical life. “If I were a mathematician,” he is reputed to have said when confronted by the chasm between his ethical teachings and the way he lived, “Would I have to be a protractor?” My ideas, and so my value as a thinker and a teacher, are to be evaluated solely by reference to the strength of the arguments that support or oppose what I have said. Whether I actually live by those principles is completely irrelevant.
Orthodox Jews don’t choose rebbeim that way. On the contrary, we insist that they internalize the Torah they are charged with teaching; that they live by it and embody it. Their greatness is measured, along with intellectual power, by the extent to which their insides and their outsides, their ideas and their personal conduct, are consistent.
But the davening on the Yamim Nora’im puts into our mouths, in public, a different idea about how to relate to God and to one another. We are not choosing rebbeim on those days, but a community of people among whom to live and with whom to pray. And when we make that choice, excluding sinners from the room, and from the amud as leaders of public prayer, is, according to our mahzor, not an option.
Why does our liturgy do this? I suggest several reasons.
The most obvious reason is that, as Kohelet taught (7:20), there are no people who are actually tzadikim (purely righteous):
כי אדם אין צדיק בארץ אשר יעשה טוב ולא יחטא
If we were only going to send people up to the amud who were actually free from sin, there’d be virtually nobody to send. As the Ba’al Ha-Tanya reminds us (Tanya, ch. 14), the overwhelming majority of us are, at best, beinonim — neither purely good nor purely bad, but with lives composed of actions that are a mixture of sin and virtue. We are all flawed, all sinners.
There is a second reason, which animates our halakhic system for determining guilt and innocence: the immense difficulty, bordering on impossibility, in truly knowing what actually happened. The Gemara (Sanhedrin 37b) famously teaches that if one saw a man run into a ruin chased by another with a knife, and then, upon entering one saw the first man dead and the man with the knife holding it as it dripped blood, one could not, on the basis of that evidence convict the second man of anything. You simply don’t know to a certainty what actually happened. You weren’t there at the crucial moment. You don’t know whether the man with the knife acted in self-defense, whether there was a third guy who committed the murder and went out some other way, leaving man number two to extract the knife, or whether a thousand other things occurred that you lack the imagination to conjure up or understand.
Coupled with this and related to it is the halakhic preference for not serving as a judge — even when a beit din is needed. The theme appears multiple times in Pirkei Avot (2:4, 4:7), among other places. (And the Talmud has a whole tractate, Horayot, devoted to the problem of judges who rule incorrectly.) This demand for humility makes it much more reasonable, in fact necessary, to daven in a room of morally flawed people — or, more accurately, in a room of people you think are morally flawed. Not only because you don’t actually know — you weren’t there— but also because you should be trying as hard as you can not to decide what actually happened.
A final point is the zone of privacy effectively created by the rules of procedure governing the imposition of punishment for violation of Halakhah. Two witnesses are required; they must warn the criminal, immediately before he acts, of the legal status of the act he is about to commit and the punishment for it. Absent these predicates, no beit din can convict anyone of violating the rules mandating capital punishment — that is, the rules governing the crimes most in need of punishment, no matter how likely, or even obvious, it may seem to us that a violation has occurred.
Private transgression, under these rules, is not within the purview of the halakhic system. We punish desecration of Shabbat, for example, when it is be-farhesia — in public. We do not punish the person who, in the privacy of his home, turns the lights on and off or answers the phone. The point is not that such acts are permitted; clearly they are not. The point is that the community’s law enforcement system does not reach such acts.
This insistence on not deciding and not ruling when you don’t have to, on not thinking you know when maybe you don’t, on not imposing a punishment for private conduct — animate the conduct of gabbaim and rebbeim in many American Orthodox synagogues in the 21st century. This is true not only with respect to members who may or not be Shomrei Shabbat but also with respect to people who are suspected of tax evasion and people whose sexual lives are not lived the way Halakhah demands (including both people who engage in homosexual behavior and people who live together before they get married). It includes weddings where mixed dancing starts a few songs in — at which point many Orthodox rabbis I know will choose not to judge, and instead simply decide that it’s late and time to go home.
All of these principles weigh in favor of understanding disagreements about politics, like disagreements about how to live as Jews, without judging the moral quality of the actors. Saiman’s way of understanding the current political divide should be an aspiration: we should try to live as if these are only disagreements about opinion, not disagreements about the moral value of the soul of the person with whom we disagree. To help us get there, the mahzor demands that we daven together especially at that time of year when each of us focuses on our own moral failings — and not, the message seems to be, on anyone else’s.
 It is true that, parallel to the set of rules described here, Halakhah allows for the creation of a regime that can effectively reach people who would otherwise get off on what are commonly called “technicalities” — by which is meant the failure of the state to conform to all of the rules applicable to criminal prosecution even when the evidence of actual guilt is overwhelming. But as RaN explains in the eleventh of his Derashot, this parallel system exists for completely different reasons than the Torah’s rules discussed above. The Torah’s rules, he there explains, exist to bring Godliness into the world; the other system exists to address the mundane (i.e., “worldly,” not “unimportant”) need for physical security and order. Because we are speaking here only about the Torah’s ideas, and not about the imposition of order and the protection of physical security, the rules that prevent people from getting off on “technicalities” are irrelevant here.