Every now and then, you write a sermon and it doesn’t “preach well” Here is what I was trying to say. You need two eyewitnesses. Eye witness testimony is unreliable. Just look at the research on the black blue dress. So in pursuing justice, and setting up fair courts, the death penalty, while permitted by Biblical law is not used in rabbinic law. Here is the full, edited sermon:
“Seeing is believing.” We’ve all heard that. But my answer is “Well, maybe.”
Seeing places an important role in Judaism. We are told in the same chapter that we are commanded to “Love our neighbors as ourselves,” to not out a stumbling block before the blind. We are told that we cannot see G-d face to face and live and that Moses was the only one who did—and that Moses saw G-d’s backside. What does that mean? Sometimes when I am teaching kids I say that it is like the wind. You cannot see the wind and yet you know it Is there. You feel the breeze on your face. See the leaves rustling. Sometimes, like this week, you see the destructive nature of wind, and you know it was there. You witness it.
We witness G-d’s presences by feeling G-d’s loving compassion and mercy. We emulate that by doing similarly. As Sotah tells us, just as G-d clothed Adam and Eve, we should clothe the naked. As G-d visited Abraham, we should visit the sick. As G-d fed the Israelite manna, we should feed the hungry. As G-d buried Moses, we should bury the dead. Each of these is the visible sign of G-d’s compassion. That is how we walk in G-d’s ways. It is about walking the talk, to use that business phrase.
The Sh’ma, the proclamation that G-d is one, the watchword of our faith commands us to hear. But there is also a command to witness. The last letter of Sh’ma, Hear is ayin (which actually means eye) and the last letter of echad, dalet, taken together these two letters, ayin dalet mean witness.
Today’s Torah portion has lots to do with justice, tzedek, tzedek tirdof, justice, justice shall you pursue. Part of that is in creating fair, equitable courts. One thing you need is two witnesses. Male, of course. We women didn’t count.
And as a footnote. That is still true today. As recently as 2001 and again in 2004, in a Committee on Jewish Law and Standards for the Conservative Movement, in a well researched and documented responsa went through all the halacha. https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19912000/geller_womenedut.pdf
So women can be witnesses but cannot sign legal documents especially for gittin, divorce decrees.
To this day, when I meet with wedding couples I suggest strongly that they have two, male, non-related witnessed for the ketubah signing so that there are no questions about status in case they ever want to move to Israel. It is always a painful part of pre-marriage counseling.
And it is important for another reason. In the case of an agunah, a chained woman, In the case of a classical Agunah, a woman whose husband has disappeared and it is not known whether the husband is still alive, a single witness (even a woman or slave, normally invalid as witnesses) may testify that the husband has died, and on that basis the woman may remarry.
Take a breath. That was a long footnote…and while that is important, you need to understand that there are two kinds of witnesses in Judaism. Testifying—those that witness a crime for instance and attesting, those that witness something like a chance in status—marriage, divorce, conversion, even rabbinic ordination.
It leaves us with a critical question:
What, then does it mean to witness something?
Scientific American did an entire issue on this important topic. https://www.scientificamerican.com/article/is-seeing-believing/
We have all seen, yes seen, and probably argued about the blue or gold dress Perhaps you saw a blue dress with black stripes or a white dress with gold stripes.
https://slate.com/technology/2017/04/heres-why-people-saw-the-dress-differently.html
For more fun, including the tennis shoe. Is it teal or pink, try this article: https://www.insider.com/best-optical-illusions-photos-2017-10#as-you-probably-know-by-now-the-dress-turned-out-to-b
It is fascinating to think about how the eyes see something and then the brain processes it. Apparently most people at first saw the dress as white and gold but in reality the dress was really black and blue. Read the article. It is fascinating and fits within our scientists in the synagogue grant. How do we really see what we see?
It has practical implications for this very Torah portion. We need just courts. One of the most significant books I read in 2020, just before the world shut down, was Just Mercy by Bryan Stevenson about his death penalty work. There is a movie by the same name, which I confess I haven’t seen but should. We know in this country that people who are on death row are disproportionality people of color have not had the same access to quality legal representation. It is part of why my husband’s brothers, both attorneys, have argued death penalty cases at the US Supreme Court. This is a topic with my own commitment to racial justice I too feel passionately about.
But what does Jewish tradition say? Like everything, the rabbis argue about it. Biblical law allows for the death penalty in 36 offenses. They include crimes like murder and kidnapping, adulty to incest and rape, idolatry and apostasy and, pay attention kids, disrespecting parents.
And yet, by the time of the Talmud, in Mishnah Sanhedrin 4:5 we learn that rarely was there is a need for “presenting completely accurate testimony in capital cases because for any mistakes or falsehoods could result in the shedding of innocent blood. If any perjury were to cause an execution, ‘the blood of the accused and his unborn offspring stain the perjurer forever.’” This is the root for learning, which I quoted last week in a different context, that “if you save one life it is as though you’ve saved the whole world. If you take a life it is as though you have destroyed the whole world.
In Talmudic times, capital cases required a 23-judge court, while you only needed 3 for a non-capital case. The US Supreme Court is 9 people (and yes, it includes women!) And coming out of today’s portion, you needed two or more eyewitnesses to testify to the defendant’s guilt. (Sanhedrin 4:1) Judges were urged to rule against conviction and if there was a one-vote majority, you could not convict. So additional judges were added in pairs until the majority ruled against conviction. (Sanhedrin 5:5) That piece was new learning for me, so if you look at current discussions about “packing the court” I guess as Ecclesiastes says “there is nothing new under the sun.”
The real argument against the death penalty is here: “Said one: The Sanhedrin (Supreme Court) that puts to death one person in seven years is termed tyrannical. Rabbi Eleazar Ben Azariah says, ‘One person in seventy years.’ Rabbi Tarffon and Rabbi Akiba say, ‘If we had been in the Sanhedrin, no one would have ever been put to death.’ Rabban Simeon Ben Gamaliel says, ‘They would have thereby increased the shedders of blood in Israel (Mishnah Makkot 1:10).’”
Many have argued through the years that the death penalty serves as a deterrent. That argument was made to me recently as it relates to the sentencing in the Poway Chabad shooter, most research has shown that the death penalty does not work as a deterrent. Would that have made a difference with an Hitler? An Eichmann? It is an important question.
While the last line of this sugiya, argument may be used to support a belief that the death penalty, if carried out judiciously, can be a deterrent, prevailing Jewish thought in every major Jewish movement in the United States has followed the previous opinions, which either oppose the death penalty outright, or allow for it only in the most extreme — once in seventy years — circumstances. Following this line of thinking, the major Jewish movements in the United States all have specific policy supporting either abolition of the death penalty, or a moratorium on its use.
And here’s why. If you convict on eye witness testimony it may not be accurate. We just proved that back with the white and gold, or wait, blue and black dress. People see what they see.
In 1992, the Innocence project was founded to use DNA testing to clear wrongly convicted people. As of August of 2019, they have won 365 exonerations including 20 people on death row.
This, is part of what we learn out of today’s portion. Tzedek, tzedek tirdof. Justice, justice shall you pursue, by setting up just and merciful courts AND making sure that they are equitable with honest eyewitnesses and the right kind of evidence. And that we should not support the death penalty, not even once in 70 years.
The Rabbi always has something interesting to say. I read her column once and then again and then spent some amount of time considering what she has said. Then I send it to my friends and family. In the end, the world is such a complicated place.