Pity poor Rabbi Akiva. He had a difficult youth and a dreadful death, but at least he enjoyed the respect of his colleagues, right? In Bavli Sanhedrin 38b Reish Lakish claims that God gave Adam the First a preview of all the sages to come, and when he reached Akiva, Adam rejoiced in his Torah, and mourned over his death. That is high praise, yet on the same page, Rabbi Akiva is on the receiving end of a stinging put-down, as he is elsewhere in the Talmud, specifically when other sages feel he is being too fanciful in his textual interpretations. Each time they tell him, “Confine yourself to negaim [the identification of blemishes] and ohalot [the rules of corpse contamination]!” The former is the focus of our double portion this week, but first let’s examine an aggadah that gets Rabbi Akiva into trouble.

The presenting issue is a mysterious Aramaic passage in chapter seven of Daniel, in which God is described as the “Ancient of Days,” sitting on a throne made of fire, supervising an apocalyptic battle of beasts which may represent the various empires that oppressed Israel. Especially puzzling is the reference in verse 7:9 to plural “thrones,” and later, in vs.13-14, to a “son of man” who comes before the Ancient of Days and is described as having dominion. This passage was of intense interest in ancient apocalyptic literature—the son of man was associated with Enoch, or with the angel Metatron, with the second throne indicative of a second power in heaven (שתי רשויות). This was obviously a destabilizing concept—indicative of a dualistic theology that either pitted divine forces of good and evil against one another, or exalted a messianic human figure to divine status. Dualistic thought was seen as deeply threatening—this was the explanation given for the heresy of Elisha b. Abuya, but it also almost ensnared the great Rabbi Akiva. Continue reading →

I recently had the privilege to respond to a lecture delivered at JTS by Seth Waxman, the former US Solicitor to the Supreme Court. He presented three current cases, one of which (McCoy vs. Louisiana) he himself argued, in his 80^th appearance before the court. Afterwards we continued his discussion of halakhic principles at stake in these cases, and one thing clearly emerged as a common ground between the two systems. Frequently the key to a good decision is not the verdict itself but the reasoning that leads to it. After all, it is the reasoning that will remain active within a legal system long after the parties are gone. It is essential that justices not only reach wise conclusions, but that they do so through reasoning that will set positive precedents for future decisions.

Mr. Waxman and I discussed the much anticipated case of Masterpiece Cakeshop, Ltd. vs. Colorado Civil Rights Commission, which hinges on two separate considerations—would compelling a business owner to create a wedding cake for a gay couple violate the cake owner’s free speech or free exercise [of religion] clause of the First Amendment? Whether the court finds for or against Masterpiece, it will make a great deal of difference how they do so—by finding that he is an artist, and artists may (or may not) be compelled to create their art, or by finding that his religious beliefs entitle him (or do not entitle him) to discriminate against others. The implications for free speech and religious liberty for all people will be enormous, and difficult to anticipate. May the justices judge with wisdom and care!

The activity of adjudicating, called הוראה or instruction in Jewish sources, is one of the most consequential responsibilities available to a person. For this reason, we are especially concerned with the education, integrity and also the sobriety of a judge. If there is doubt about the state of mind of the judge, then there is doubt about the validity of the judgment, and if the judgments of a nation’s courts are invalid, then the entire society’s moral standing is imperiled. We learn this important lesson indirectly from our portion, Shmini, which includes one of the most tragic and mystifying stories in the Torah, the sudden deaths of Aaron’s sons Nadav and Avihu on their first day of service in the tabernacle. Continue reading →