Rabbi Marc E. Berkson -- Rosh Hashanah Morning -- 2nd Day -- 5767

Back to the Future

As all of you must be aware by now, two initiatives will appear on our ballots when we go to vote in November here in Wisconsin. One is a referendum—the other a state constitutional amendment. One comes belatedly, if you will, following a pattern set by many other states; the other seems to reflect a desire to resist, if not to buck, national trends. Both surely play on issues that divide the American electorate; many believe that both appear on the ballot this November to increase the numbers of people who will turn out to vote. And surely I would not be addressing these initiatives on Rosh Hashanah morning if I did not think that Jewish texts and traditions can offer guidance to us as we consider our positions.

It is the referendum which appears to be going in the face of national trends. Over the last decade or so, increasing doubts have been raised regarding capital punishment. According to the United States Supreme Court, a national consensus exists against executing people with mental retardation and against executing juveniles. Doubts have also grown as we learn more and more about the reliability, or lack thereof, of eyewitness testimony and of the ability, at times, through new evidentiary techniques to discover that a person convicted of a capital crime did not commit that crime. In the midst of this growing consensus and in the midst of several states placing moratoria on executions, we are being asked to advise the members of the Wisconsin legislature whether or not to enact the death penalty in our state for first-degree intentional homicide if such a conviction is supported by DNA evidence. Wisconsin, in its entire history as a state, has executed one man. That was in 1851—and Wisconsin was the first state to repeal the death penalty in 1853. Now, in 2006, we are being asked to consider its reimposition.
In our considerations, two questions can be asked—a philosophical, theological, moral one, if you will, and a practical one. First, should the death penalty exist at all? Second, does the death penalty work?

For us, as Jews, Torah is really quite clear; capital punishment is not only allowed in our tradition, it is mandated. That is the quick answer to the first question. The translation of Exodus 21:12 is as direct as the Hebrew—“One who fatally strikes another person shall be put to death.” Life is a gift from God; only God may take that gift back. Torah then elaborates on those actions which constitute capital crimes. The homicide must be intentional; yet there are circumstances, such as self-defense and warfare, which mandate killing another to save one’s one life. But the offenses for which Torah demands the death penalty extend beyond murder to include adultery, incest, idolatry, insulting one’s parents, public desecration of Shabbat, and kidnapping.

Still, generations of rabbinic interpretation of these texts over the centuries have made the imposition of the death penalty almost impossible. The rabbis required two eyewitnesses to convict. The perpetrator had to be forewarned that the act about to be committed would impose the death penalty and the perpetrator had to specifically reject the warning. The court sitting on a capital case had to have 23 ordained judges and the death penalty could only be imposed if a majority of at least two judges voted to convict. Other details made the imposition of the death penalty even less likely. And other rabbinic texts make clear how rarely the death penalty was ever imposed.

Were the rabbis trying to answer the second question? Did they determine that, while the first question could be answered in the affirmative, the second question could not? In other words, did they determine that the death penalty simply did not work? Or were the rabbis still trying to answer the first question, convinced that only God could take a life?

It can be hard to extend Jewish tradition to the use of the death penalty today. Surely, the Central Conference of American Rabbis and the Union for Reform Judaism have spoken loudly and forcefully against its use. So did the former Synagogue Council of America, speaking on behalf of all the streams of Judaism in America. And we also know how broken the system for capital punishment is today. Innocent people are convicted of crimes; innocent people have been executed. Evidence, even DNA evidence, is not infallible and is dependent upon the quality of the evidence and upon the testing lab. And we all know how distorted our legal system is. One who can afford a good lawyer will rarely get convicted, let alone be executed; one who is poor and one who is of color is far more likely to be convicted and executed. In short, capital punishment does not work. Yet I am convinced that the rabbis were also answering no to the first question—in the end, only God can take a life.

While the referendum suggests our state bucking national trends, the amendment reflects our state belatedly following in the footsteps of other states. For we are also being asked to vote on an amendment referendum that would impose a constitutional ban on civil unions while, at the same time, making clear that only marriage between a man and a woman shall be valid and recognized as a marriage in the state of Wisconsin. Again, at least in the case of male homosexual activity, Torah is quite clear in its prohibition. One simply need read Leviticus 18:23 and 20:13. There is no direct prohibition of female homosexual activity in Torah. An argument can be made that the sexual behavior described in these texts is neither imagined in the context of a long-term loving relationship based on equality and mutual respect nor with the understanding that homosexuality is not a matter of choice. The texts have much more to do with cultic prostitution and other pagan practices.

It is true that, for Jews, heterosexual, monogamous, procreative marriage became the ideal human relationship and a paradigm for our relationship with God. Yet many Jewish couples remain childless—and happily married. And Torah, right at the beginning, in Genesis 2:18, teaches that “It is not good for one to be alone.” We also know that societally. The legal benefits of marriage are immense—as are so many others. The health benefits—physical and emotional—are immense. Married folk are wealthier—and safer. And consider the benefits which extend beyond the couple. Married partners monitor each other’s behavior. Eventually, marriage provides reliable and concerned caregivers—people who care for each other when beset with illness or job loss or pain. And marriage helps to domesticate men. In short, as I shared in my sermon on Rosh Hashanah three years ago, if you want to live a longer, healthier, happier, wealthier, and more involved life, society urges you to go out and get married. Unless, of course, you are gay or lesbian. And just as I expect the state to allow couples of different religious backgrounds to be married even if I do not officiate at those ceremonies, so, too, do I hope the day soon arrives when the every state in the Union will allow couples of the same gender to be married even if their respective clergy may choose not to officiate at such ceremonies. Yes, the most conservative part of me wants to get rid of civil unions; I want to encourage marriage. In fact, to be honest--cohabitation, domestic partnership, civil union—all seem to be privatized lifestyle options on a continuum of commitment. And I want to encourage the unique public commitment called marriage.

This discussion will continue in the days and weeks to come. But both Rabbi Schaalman and I have spoken to you for the last couple of days. Thus, as has become our custom, a few moments this second day of Rosh Hashanah for you to talk back.