Jonathan Pollard, the Irvine 11, and the Mikado

Pollard-Biden

From The New York Times on Friday:

“President Obama was considering clemency [for Jonathan Pollard], but I told him, ‘Over my dead body are we going to let him out before his time,’ ” Biden said during a meeting with rabbis in Boca Raton, Fla., according to the newspaper. “If it were up to me, he would stay in jail for life.”

The headline of the piece: "Obama Turns to Biden to Reassure Jewish Voters, and Get Them to Contribute, Too." That being the case, I suppose one must give credit to the Vice President for passing up an opportunity to pander to his rabbinic audience.

Pollard's case is a source of righteous outrage for some Jews, and a source of ambiguity and unease for others. Speaking personally, I believe Pollard committed a serious crime and deserved jail time. Individual citizens cannot be free to choose which nations can see classified governmental information, no matter how harmless their choice. There is a principle at stake.

Still, for all that, the sentence is vastly -- and cruelly -- out of proportion to the crime. Pollard ought not be pardoned, but he should certainly have his sentence commuted and be freed at once.

Disproportionate punishment makes a mockery of justice as much as crime does... Therefore, I also believe the punishment doled out to the Irvine 11 was excessive. I agree with my colleague Stefanie (who posted on this subject earlier today) that the students' conduct was unacceptable, but three years of probation is a very serious and constraining business indeed; these students deserved a semester of academic probation, not a criminal charge.

Jonathan Pollard and the Irvine 11: not the most natural of pairings. Yet both together bring to mind what W.S. Gilbert reminded us: the punishment should fit the crime.

Galliano Receives Slap on Wrist for Anti-Semitic Ramblings

Bigot Olympian

In honor of New York Fashion Week, it only makes sense to doff our caps to a former great, made social pariah, fashion designer. A man who could design a fabulous handbag but who thought being friends with Gisele made him G-d's gift to the world.

John Galliano, former head designer of Christian Dior, was recently sentenced by a Paris court to a suspended fine and zero jail time after his now-famous expletive-laced rant was videotaped and went viral. In it, Galliano derided Jews, praised Hitler, and in general won himself a first place ribbon in the Bigot Olympics. When Mel Gibson did the same in his puzzling diatribe, his only punishment was to have his less than flattering mugshot blasted on every TV and computer screen worldwide. Galliano, on the other hand, faced court time.

As much as I would have loved to see Galliano be served a harsh punishment from a judge for acting like an imbecile, it is pretty surprising to my American mind that he went to court for expressing his idiotic thoughts. Our first amendment rights are (usually) a wonderful thing. If you want to celebrate Festivus, fine with us. Petition the government for every American to be given a free puppy? Why not. Go off on a racist diatribe? Eh, not as cute as a puppy. But we'll let you get away with it.

Europe, it seems, has other ideas. I don't find their hate speech laws too restrictive, per se. But from a practical standpoint it does seem like a colossal waste of time and money to place every racist moron in court for running their mouths. (See this Institute for Jewish Policy Research report arguing that these laws are also ineffective.) Then again, if Galliano had made the same comments at a cafe in America, he would have walked away from there scot-free.

What do you think?

Church and State and Social Services

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Controversy continues to unfold regarding the US Department of Health and Human Service's announcement that new guidelines will require employers who offer health coverage to cover a number of women's health services, including contraception -- with religious exemptions. Some argue that the exemption denies vital services to women who work for religious employers, while others maintain that the exemption does not go far enough.

As long as private religious groups have been involved in the provision of services, whether as agencies (directly) or as employers (indirectly, as in the current controversy), questions of freedom, regulation, accomodation and coercion have appeared difficult to resolve, with religious freedom and full provision of services to individuals locked in seemingly insoluble conflict. This week's J-Vault pick, written by a distinguished New York family court judge, explores some of these questions as they relate to adoption.

This week, from the J-Vault: State, Religion and Child Welfare (1956)

The Hon. Justine Wise Polier was born into a prominent Jewish family, the daughter of the celebrated Rabbi Stephen Wise. She made her own name, however, when Fiorello LaGuardia appointed her to a family court judgeship, making her the youngest municipal justice in the country, and the first woman in New York State to hold a judicial post above magistrate.

In her address to the 1956 Annual Meeting of the National Conference of Jewish Communal Service (later published in the Journal of Jewish Communal Service) Judge Polier argued that the state frequently intruded into private religious affairs, and frequently neglected vital needs of clients for religious purposes. Ironically, she explained, these abuses originate in a desire that the state precisely not engage in religious coercion:

There was the deep concern that the state, through its representatives, should not misuse the power to provide care for children outside their own homes in order to change their religion or engage in proselytizing. There was also the strong feeling on the part of many religious groups that they should provide for the needy children of their own faith.

The problem, said Judge Polier, was that such religious matching was being placed above quality and type of care being provided:

The state has a basic responsibility to see that every child who needs placement outside his own home shall receive the type of care which the child needs. It may under the laws of many states delegate its responsibility for providing such care to voluntary agencies, sectarian or non-sectarian. It does not have the right, in my opinion, to turn a child over to any kind of care, so long as the child is placed with an agency of its own faith, or to keep a child in cold storage till a sectarian agency has a vacancy...

...Over and over again, we find that though the social study may clearly indicate that a baby needs a foster or adoptive home, if none is available within his own religious group, rather than refer him to an agency of another faith or a non-sectarian agency, such an infant or child will be kept for weeks, months, and even years, in a hospital or shelter. We find that even when a diagnostic study shows the need of psychotherapy and individual care, if none is available within his sectarian group, the child is frequently sent off to a custodial institution in violation of all we know as to his needs...

...There are other areas where the question of the role of religion in child care must be examined. While there is little question that religion can be a significant moral and ethical force in the life of a child, it would certainly seem contrary to the American principle of religious freedom to impose and demand religious adherence and observance of children or parents without at least the consent of the parents. Yet, in recent years, in more and more children's courts, we find judges, as representatives of the state, requiring the performance of religious obligations as a condition of probation. We hear the rationale that if a child is found neglected or delinquent the parent has failed, and the judge has a right to require religious training as part of a program of rehabilitation...

...In New York City we have also been faced by the development of a policy by the Presiding Justice of the Domestic Relations Court that raises yet another question concerning religion and child care. He has decided that probation officers shall be appointed on the basis of a religious quota roughly following the religious affiliation of the children brought before the Court. This means that although the Jewish population of New York City is slightly under 30 per cent, since the percentage of delinquent and neglected Jewish children brought before the Court is roughly 5 per cent, he has decided that only 5 per cent of the probation officers may be Jewish. As a result, even though a qualified Jewish young man or woman has passed his Civil Service Examination, he will be passed over in favor of a less qualified non-Jew...

The Judge did not argue for ignoring religion in adoption:

To the extent that children can be placed in homes of the same faith, as that of their parents, this should be done, except in those cases where the parent or parents freely choose to have their children placed in a home of another faith. Americans have the right to choose and to change their faiths and those of their children. That a parent decides to surrender his or her child for adoption does not abrogate this right or transfer it to any other person, official, institution or the State.

However:

When no adoptive home of the child's faith is available for a child, it is the duty of the State and indeed of voluntary agencies to see that, in the interests of the child's welfare, he shall be placed in the best adoptive home available. No person, no religious institution, no public department, and no State has the right to say to a defenseless child, "You have no home. But because of your race or religion, you shall stay in an institution until you are 16 or 17 and then be turned out into a world in which you have no one to whom you belong." This is happening today in too many areas. It is our duty to see that such injuries to children shall not continue.

Download the full publication.

 

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Cain's Incomplete Apology, and Religion in Politics

After offending Muslims (and at least one Jew) last week by saying localities have the right to ban mosques because Islam includes the concept of shari'a law, Herman Cain has now met with Muslim leaders and released an apology:

...While I stand by my opposition to the interference of shariah law into the American legal system, I remain humble and contrite for any statements I have made that might have caused offense to Muslim Americans and their friends. I am truly sorry for any comments that may have betrayed my commitment to the U.S. Constitution and the freedom of religion guaranteed by it. Muslims, like all Americans, have the right to practice their faith freely and peacefully.

As I expected, we discovered we have much more in common in our values and virtues. In my own life as a black youth growing up in the segregated South, I understand their frustration with stereotypes. Those in attendance, like most Muslim Americans, are peaceful Muslims and patriotic Americans whose good will is often drowned out by the reprehensible actions of jihadists...

Cain's apology is unsatisfactory for two reasons. First, he ought to have stated specifically that he now realizes that localities do not have the right to ban mosques, if in fact he has come to that realization.  If he has not, and he still believes localities may ban mosques, then his apology for causing offense is utterly hollow. If he has changed his position, then he should say so directly; dodging the specific issue just leaves him looking weaselish. (Speaking of weaselish, see also the phrase "..any comments that may have betrayed my commitment to the U.S. Constitution...")

Second, Cain again makes the problematic assertion that shari'a has no right to "interfere" in the American legal system (see the first sentence excerpted above). It is actually quite tricky to pin down what this might mean, and once again a glance at parallel concepts in other American religions is instructive. Does Cain believe that shari'a should be held to a different standard than Jewish halakhah and Catholic canon law? If so, he continues to favor bigotry. Even if this is the case, I can't imagine he'll be up front about it, so let's assume he would say he believes that religious legal systems should all be held to the same standards. How, then, would Herman Cain define interfering, and how precisely would he seek to curb it?

I have emailed the following questions to Herman Cain's campaign:

  1. Should shari'a law be held to the same standards or different standards than Jewish halakhah or Catholic canon law?
  2. If a Muslim citizen believes shari'a law reflects God's will, and that shari'a prohibits gay marriage, and so votes for a candidate who opposes gay marriage, does that count as "interference"?
  3. If a Jewish citizen believes halakhah reflects God's will, and that halakhah requires a middle ground between the standard pro-life and pro-choice abortion positions, and so votes for a candidate who is centrist on abortion, is that "interference"?
  4. If a Christian citizen believes Jesus commanded socialism, and so votes for a socialist candidate, is that "interference"?
  5. When anti-slavery Christian pastors preached that God insisted slavery be abolished, was that "interference"?
  6. When, in the 1950s and '60s, Archbishop Joseph Rummel of New Orleans threatened pro-segregation Catholic politicians with excommunication, was that "interference"?
  7. When, today, pro-life Christian clergy instruct their flocks that God wants the United States to protect unborn life by force of law, is that "interference"?
  8. Please provide a clear, specific hypothetical example of something that would be "interference": an example for shari'a, for halakhah, and for canon law.

We'll have to see whether or not some campaign staffer sends answers.

(As I mentioned last week, the gold standard for addressing these questions, in my opinion, is Prof. Stephen L. Carter's God's Name in Vain: The Wrongs and Rights of Religion in Politics.)

The Anti-Boycott Bill and the Double Standard

Censorship

Law Professor Eugene Kontorovich argues in the Jerusalem Post that the outcry against Israel's recent law banning the organization of boycotts is mistaken, and guilty of a double-standard:

There is no universal code of free speech. Determining what gets protection involves trade-offs between the very real harm that speech can cause and the benefit of free expression. Among liberal Western democracies, how that balance is struck varies significantly, depending on legal traditions and circumstances. The United States has far more robust constitutional speech protections than almost any Western country. Most European nations – and Israel – have numerous laws criminalizing speech that would not conceivably pass muster under the First Amendment. This does not mean these countries deny freedom of speech; merely that there are competing ideas...

...Great Britain has strong libel laws that prevent people from truthfully condemning public officials. While the law is widely criticized, no one has suggested Britain has thereby lost its democratic status. Critics of Israel’s anti-boycott law denounce it as fascist. In Europe, calling others fascist has gotten prominent politicians prosecuted – prosecutions that have not provoked lectures on free speech from the EU or America’s State Department...

...The anti-boycott law prohibits speech intended to cause economic harm to businesses solely because of their national identity. Nondiscrimination laws commonly ban plans to deny business to specified groups of certain national or ethnic origins. Israel’s new law bans discrimination against businesses because they are Israeli. Most European states – and Israel – have laws prohibiting speech that is perceived as “hateful” or which simply offends the feelings of particular groups. Often such speech expresses important viewpoints. A boycott of Israel promotes hatred of Israel, and certainly offends the vast majority of Israelis...

...[T]he law has a characteristic crucial for free-speech scrutiny – it is “viewpoint neutral.” That is, it applies to boycotts of Israel whether organized by the left wing or the right wing.

Like most European democracies, Israel’s constitutional protection of speech has long been narrower than America’s. One example is that speech restraints have long been used against right-wing groups. Just recently, a prominent right-wing activist has been prosecuted for “insulting a public official,” after denouncing those responsible for expelling Jewish families from Gaza in 2005. In recent weeks, police have arrested several rabbis for authoring or endorsing obscure treatises of religious law that discuss (allegedly too leniently) the permissibility of killing enemy civilians in wartime...

...Israel’s current practice is clearly well within the limits of an open democracy. Singling out Israel for laws that are identical to, or just as restrictive as, laws on the books in America and Europe manifests the very problem that exists with the boycotts themselves – the application of an entirely different set of standards to Israel than to the rest of the free world.

Kontorovich makes an extremely compelling case that Israel's new law is completely in line with the range of speech laws exemplified by many democratic countries. I, for one, am convinced that it is completely unfair to claim that Israel is undemocratic for passing this law.

That being said, the law remains a terrible idea. Kontorovich is right that Israel is being held to a risible double standard, but the answer isn't to lower the standard of freedom for Israel, it is to raise the standard of freedom for everyone else. Other democracies with restrictive speech laws, including Europe, Canada and others, should pass new laws permitting the expression of any opinion, even offensive and harmful opinions, because that's the right thing to do. The goal shouldn't be matching precedent, it should be doing what is right.

The dodge of right and wrong by fleeing to precedent is a common pattern when Israel is unfairly singled out (i.e., depressingly frequently): critics point out something Israel has done wrong, and Israel's defenders immediately shout to the high heavens that every other country does it and nobody ever complains, and that's unfair in a very sinister way.

They're absolutely right: it's monumentally unfair, and often sinister, and the use of the double standard as a stealth weapon in the PR war against Israel must be exposed and combated. That important conversation, however, (the one about fairness and double standards) ought to be separate from conversations about specific criticisms of specific actions. Responding to a specific criticism by pointing to the double standard is a dodge, and a mistake.

When it comes to a specific criticism, the crux of the matter is always this: either the action Israel did was wrong, or it's right. If the action was right, then the double standard is a red herring; respond to criticism by demonstrating that the action was right. If the action was wrong, then the double standard remains a red herring; respond to the criticism by acknowledging that the action was wrong, and figure out how to fix it.

In the case of this anti-boycott law, the idea that the state can stop people from advocating that their fellow citizens use their purchasing power to make a political statement is just wrong, even if that political statement is despicable. If freedom of speech means anything, it means freedom of advocacy.