Where your own nose begins
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OpinionI’VE BEEN THINKING

Where your own nose begins

Jewish holidays are governed by and consist of a variety of distinct laws, ritual observances, and liturgy. But as those observing these holidays know, there’s more to it.

Each holiday is distinct, with its own tone, feeling, and essence, beyond what appears in our texts. Thus, the Yomim Nora’im and Tisha B’Av are serious and somber, Purim and Simchat Torah lively and joyous, Chanukah smells of fried foods, and Shavuot tastes like cheesecake.

Also, different families may have varying approaches to the same holiday. Some pride themselves on sedarim that extend long into the night; others try to be in bed before the clock strikes twelve. Some think one new Rosh HaShana fruit is sufficient; others aren’t satisfied even with the many delicious high-quality selections at Julio’s and make a trip to Food Bazaar in Queens. Families even have diverse customs concerning the small treats they bring back to shul before Ne’ila to enjoy right after havdala. (My family: late sedarim, Food Bazaar, Milky Ways).

One final thought about holidays before I get to the major point of this column. (These initial paragraphs track my thinking before I arrived at my end point; I thought you might enjoy a glimpse at my mind’s twisty road.) While all holidays have proper names, often biblical or rabbinic, we sometimes use more informal ones. Thus, for example, there’s the infamous “three-day yuntif” — a reference to a two-day holiday (almost always outside Israel) immediately before or after a Shabbat. That name is not found in any text, but many understand the reference, especially those (most often women) in charge of preparing the equivalent of six Thanksgiving dinners over a single weekend.

And then there’s the dreaded “seven-day year,” like this past one, when seven days of yom tov (two Rosh Hashana days, Yom Kippur, and four of Sukkot/Shmini Atzeret) fall out on weekdays. In such a year, many who observe all these days struggle to take off seven out of 17 consecutive workdays in a round robin of shul, food, shul, food — seemingly ad infinitum (or as it sometimes appears, nauseum?).

Which brings me to my first legal job. Most of that firm’s partners were Catholics who took religion seriously. I therefore never had a problem leaving early on winter Fridays or taking off for yom tov. The partners couldn’t have been more accommodating, and I’m deeply grateful to them for making my observance so comfortable. Many of my friends were not so fortunate.

One “seven-day year,” however, I was a young associate involved in a large securities case. My firm represented one of more than two dozen defendants, and a lengthy series of daily depositions was scheduled for that period. Although most didn’t involve our client, our presence still was required. When one of the last depositions, which I was supposed to attend, was rescheduled for Simchat Torah, I had to tell the partner in charge that I couldn’t attend because of a Jewish holiday. After a short silence, he said, with a deep sigh: “Another one?” I understood Jim’s annoyance that this long unproductive day fell out of my lap into his. But he graciously covered the deposition for me (it’s supposed to be the other way around) and never mentioned it again.

I’ve often thought about this incident in connection with the issue of providing reasonable accommodation for religious observance. It’s a relatively easy concept when dealing with the government; a basic First Amendment right is the free exercise of religion, and it’s therefore perfectly reasonable to require governments to accommodate such exercise.

It’s more difficult, though, when one person’s religious rights impose hardships on other people, not the government, or brush up against the others’ rights. In such conflicts, the second group sometimes must bear the burden of the first group’s free exercise. With people of good will, this often becomes a two-way street. Thus, understanding that my yom tov schedule sometimes made others stay later at the office, I, like many others, made myself available for emergency or overtime duty during the Christmas and Easter seasons to help my Christian colleagues in the celebration of their holidays. A bit of common sense and collegiality can go a long way in easing the process of religious accommodation.

But not always. Take the matter of the “ministerial exemption” that I’ve written about previously. (“On prohibiting the free exercise thereof” and “A church-state fairness doctrine.”) That legal doctrine protects the right of religious institutions to exercise, without governmental oversight, their ecclesiastical function of selecting and controlling people holding important positions with, and personifying the beliefs of, those institutions. Thus, for example, anti-discrimination laws aren’t enforceable in such relationships.

I support applying this doctrine to the leaders of religious institutions — the priest of a church, for example, or the principal of a yeshiva high school. But consider this hypothetical. (I sometimes use this column to relive my law school or appellate argument days.) A yeshiva fires a Jewish African-American English teacher who, as a small part of his full-time workload, gives a single course in the Hebrew Bible as Literature and supervises mincha. He claims he was fired because of his race; the school told him it was due exclusively to excessive unexcused absences, and not based on any racial or religious considerations.

In a non-religious institution setting, the teacher could bring an unlawful discrimination lawsuit, and both sides would present evidence to a jury, which would decide whether the school’s actions were discriminatory. However, the ministerial exemption bars the teacher from having his claim adjudicated in court. The school’s free exercise rights trump the teacher’s right not to be discriminated against. (Note: I understand, but leave for another column perhaps, that free exercise is a constitutional right, while the right not to be discriminated against by a non-governmental entity is statutory.)

We see something similar in the case of YU and its rejected Pride Alliance club and in the battles between, on the one hand, bakers, photographers, and website designers, and, on the other, same-sex couples who want to use their services for weddings. In such cases, it’s sadly impossible to accommodate the legitimate rights of both sides.

Similar conflicts arise in non-legal settings. Take, for example, a multi-denominational Jewish gathering where participants want to organize a prayer service. The Orthodox insist that men and women be separated by a mechitzah and that only men lead the services; the liberal denominations demur, saying their values prohibit them from treating women differently than men in such services. Two clashing sets of deeply held beliefs. What to do?

Sometimes, like this prayer service scenario, a win-win solution is possible. For example, each group can run its own service, thus accommodating the needs of all participants without imposing a burden on either group. It’s not ideal, but no one goes away a loser.

Some conflicts, though, are zero sum. Either the baker/photographer/website designer provides the services or the same-sex couple ends up being treated differently than other couples. Both sides can’t win. One set of rights must bow to the other.

It would take someone far wiser that I am to find a completely satisfactory solution to this quandary. But let me suggest a start. First, each side needs to understand and respect the other side’s position. And second, each side must further understand that it might sometimes lose. Losing, while always uncomfortable, is not the end of the world, and is often important in helping different types of people live together peacefully.

When I think about the YU/Pride Alliance dispute I can’t help but also think about a similar dispute YU had with a same-sex couple over housing accommodations at its then Albert Einstein School of Medicine. To be sure, that case did not revolve around free exercise issues, at least in court. Nonetheless, YU’s ability to continue as an Orthodox institution was very much in the forefront of the minds of the Orthodox community. How can an Orthodox institution allow violations of halacha on one of its campuses? many asked. What will be next — non-kosher food in cafeterias or Shabbat desecration in its school buildings?

YU lost that case; that is, after YU’s motion to dismiss was denied, it decided that rather than go to trial it would change its policy and allow the same-sex couple to live in student housing, thus agreeing to the requested relief. But under the wise leadership of Rabbi Dr. Norman Lamm, it bore its loss with dignity and the sky didn’t fall in. YU’s cafeterias remain kosher, its schools are closed on Shabbat, and Torah learning and Jewish observance continue to be its hallmark and my community’s pride.

In addition, YU has become more sensitive to LGBTQ issues, especially within the Orthodox community, and its respect for and treatment of its LGBTQ students and their needs has improved since the Einstein dispute’s resolution. While this doesn’t resolve the Pride Alliance issue, it is, in itself, a positive development.

We all have to lose sometimes. And if we do that right, we’ll most often survive to live another day and perhaps — just perhaps — eventually turn a supposed loss into an actual win.

Joseph C. Kaplan, a regular columnist, is a long-time resident of Teaneck. His work also has appeared in various publications including Sh’ma magazine, the New York Jewish Week, the Baltimore Jewish Times, and, as letters to the editor, the New York Times.

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