The Torah and the Supreme Court: Tazria and Scalia

by Bob Schwartz

Women of the Supreme Court

This week the portion of the Torah read in Jewish communities is Tazria (Leviticus 12:1–13:59). This week the Supreme Court heard arguments in the widely reported Hobby Lobby case. There is a significant but not obvious connection between the two.

Leviticus is the one of the Five Books of Moses that has the least action and the most rules. Lots of rules about the behavior of the Jewish people. In the thousands of years since those rules flowed into the processes of cultural and social oral tradition, and in the thousands of years since those traditions were set down in writing, different Jewish people and communities have determined which to honor and which to ignore. Those decisions are based on what exactly one thinks these rules are: God-given and inviolable, or ancient and subject to temporizing to suit modern philosophy and life. We should not wear clothing made from two different fabrics, Leviticus says. Non-literal interpretations of this have been conceived for centuries, but it says what it says, or rather, God says what God says. But what’s so wrong about a wrinkle-free, 60/40 cotton-poly blend shirt?

The Tazria portion begins:

The Lord spoke to Moses, saying: Speak to the Israelite people thus: When a woman at childbirth bears a male, she shall be unclean seven days; she shall be unclean as at the time of her menstrual infirmity. On the eighth day the flesh of his foreskin shall be circumcised. She shall remain in a state of blood purification for thirty-three days: she shall not touch any consecrated thing, nor enter the sanctuary until her period of purification is completed. If she bears a female, she shall be unclean two weeks as during her menstruation, and she shall remain in a state of blood purification for sixty-six days.

On the completion of her period of purification, for either son or daughter, she shall bring to the priest, at the entrance of the Tent of Meeting, a lamb in its first year for a burnt offering, and a pigeon or a turtledove for a sin offering. He shall offer it before the Lord and make expiation on her behalf; she shall then be clean from her flow of blood. Such are the rituals concerning her who bears a child, male or female. If, however, her means do not suffice for a sheep, she shall take two turtledoves or two pigeons, one for a burnt offering and the other for a sin offering. The priest shall make expiation on her behalf, and she shall be clean.

 The attitude toward and treatment of this passage in a modern context ranges widely, depending on belief sets. Some express wholesale acceptance and obedience (except for the sheep and bird sacrifice). Some faithfully regard it as God’s word, but pass it through interpretive filters suitable for the times. Some see it as a reflection of ancient people making sense of the mysteries of God and life.

One of those mysteries, of course, is women. Especially for men. Especially for the strange and foreign ways that women “work”. No matter your ideology, no matter how much the passage is accepted or spun, it is not hard to read meaning. Women are different. Some of that difference renders them unclean, even if that part is functionally essential (e.g., sex, birth). That uncleanness can be fixed, but it will cost you (e.g., lambs, pigeons).

The Hobby Lobby cases (Kathleen Sibelius, Secretary of Health and Human Services v. Hobby Lobby; Conestoga Wood Specialties Corp. v. Sebelius) concern the interaction of two federal laws: The Religious Freedom Restoration Act of 1993 (RFRA), which aims to protect Americans from intrusion on their religious lives, and the Affordable Care Act (ACA) which, among other things, requires employers to offer health insurance that includes coverage for contraception. The Tenth Circuit Court of Appeals found that the religious right of companies such as Hobby Lobby, which has Christian objections to providing that coverage, overcomes the particular requirement of the ACA.

The big legal issues are complex and significant. One arises every time religion is in the mix: we protect religion in this country, both in its expression and establishment, but in a nominally secular country, that is bound to clash with civil rights that may contravene religious belief. This isn’t easy to resolve, but resolve it we do. If, for example, your religion happens to believe that people of color are lesser human beings, and you are “commanded” to treat them accordingly, you still cannot follow that faith in the public square or the marketplace.

The other big legal issue is whether a company such as Hobby Lobby is a “person” able to enjoy religious liberties in the first place. We’ve seen this come up before and will again. Citizens United is the most recent and famous case deciding that enterprises may enjoy free speech, First Amendment rights, just as you do. Then there is Mitt Romney, former presidential candidate, who will forever be identified with his own legal interpretation of the issue: “Corporations are people, my friend.”

Besides these, the Hobby Lobby case is widely viewed as being about women, because practically it is. The ACA requirement that health insurance include contraceptives for women is a practically and realistically sound policy. A large majority of women use contraceptives, either for health reasons or, more frequently, to prevent conceiving as a result of sex. Preventing conception has a number of advantages, including avoiding unwanted or unplanned pregnancies. An advantage of this is that women do have sex, and do want to avoid pregnancy. It’s that basic. And then there’s this: many of those women who want to prevent conception are having sex with men.

The transcript of oral arguments in the Hobby Lobby case shows, as usual, a deeply divided court. Beyond the interesting central arguments concerning religious freedom and the personhood of corporations, there is a subtle subtext (some might say not so subtle). To a certain extent, the law, and arguments about it, are clinical. To the greatest extent possible, questions about impact are subservient to questions about the law itself: what it says, what was intended, how it works with other laws and with the Constitution. The rule of law prevails over the rule of people, and if the impact is unfair or disproportionate but still constitutional and legal, well, change the law.

But that has never been, will never be, and can never be how it works. Everyone—judges, lawyers, litigants, citizens—comes to the table with histories, psyches, lives, all the riches and trash we can carry. That’s how a case that seems about one thing can be, at least in small part, about another. That’s how the Hobby Lobby case is about women, something the three women on the Supreme Court without question get, something the six men may or may not.

Do read the transcript of the argument and maybe a few of the almost one hundred appellate briefs filed in the cases. In the arguments, you won’t find any express misunderstanding of the lives and impact of the case on women, though you may if you read between the lines. The briefs, which come from just about every corner of American society and politics, are a little clearer on how this is about women in ways that are not just incidental.

This brings us back to Tazria. It is easy to dismiss the passage as archaic, particularly for those who have found ways to work through or around it. Similarly, you may consider the Hobby Lobby case one about important and respectable religious and legal doctrines, and it is.

It can’t be said often enough: Men don’t get it and they can’t. They don’t know what it’s like to menstruate or be capable of bearing children or of having children. They don’t know what’s it like to be treated as unclean because of all of that, and then to be hypocritically treated as enjoyable and useful for those very same reasons. They don’t know how it feels to have some very simple means of adjusting all that, and then to have those means treated as something both profound and trivial, but not important.

Men don’t know, even if they are at the pinnacle, writing scripture or dispensing justice. So pleading ignorance, a little humility, a little learning, and a little compassion might be in order.

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