Can Orthodox Jewry nonetheless learn from Pope Francis?

Pope Francis has clearly had an horrendous fortnight. The priest scandal has exploded once again, this time in both Pennsylvania and in Ireland, albeit for conduct predating his pontificate; but he is also now accused by a leading conservative opponent in the Church of having been complicit in D.C. Cardinal Theodore McCarrick’s wrongdoing, having specifically ignored the cardinal’s history of sexual abuses. We are hardly in a position to assess the merits of this troubling allegation — the trumpeting elephant in the room when addressing the Pope’s pervasive good deeds (though it does seem out of character for this Pope who has done so much good). So, one must ask, do we throw out the good with the bad?

For hardliners of the Jewish religion, the mere title of this article and implicit suggestion that we can, under any circumstances, actually learn anything from the Pope – or, for that matter, any pope – will likely seem to be apostasy. After all, even putting aside the current crisis, look at all the monstrous transgressions against the Jews perpetrated in the name of the Church (and, sometimes, under the direction of some of Pope Francis’s predecessors) – the Crusades, the Inquisition, and perhaps more in modern times.

Still, Pope Francis, a controversial prelate to be sure, who has, to his great credit, liberalized Church doctrine in many ways (even though he had, until recently been insufficiently attentive to and publicly remorseful about the priest scandal), has now finally amended, as it were, the catechism in another important respect. In doing so, he has recently nudged Church doctrine into 21st Century thinking by declaring to the world that the death penalty is simply no longer acceptable – given “the increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes.” In his curious phrase, the death penalty is now “inadmissible.”

Now, how can he do that? How does the Pope (may I say) arrogate to himself the authority to actually undo the Bible’s teaching that makes exquisitely clear that the death penalty to be imposed by mankind does indeed apply to all sorts of offenses – and a fortiori to murder, as bad an offense as one can possibly commit? Indeed, the Hebrew Bible astonishingly provides that God Himself, when confronted by (the unknowing) Moses, declared that a man who merely gathered wood in the public square on the Shabbat should literally be given death by mankind for his offense (call it, “sin”). Not to mention the myriad other offenses described in the Bible supposedly warranting death.

So given the infallibility of Biblical teaching, does Pope Francis see it as his right (his duty?) to influence secular governmental action – for that is actually what he’s doing – when the Church itself, in today’s non-theocratic times, maintains no role in imposing punishment for a civil wrong or crime? If the Pope wants to tell his flock to not commit adultery, engage in racist conduct or participate in any other immoral (albeit not civilly illegal) conduct, that is surely his right and duty. But do and should his words influence the state in addressing and regulating its penal rules and obligations? Maybe.

So, why shouldn’t Pope Francis try to influence the world, if he believes that society, including more than a billion Catholics, engages in immoral behavior in imposing the death penalty? He has, before, tackled issues such as the environment (Laudato Si’, “the relationship between human life and the moral law, which is inscribed in our nature and is necessary for the creation of a more dignified environment”); divorced Catholics (they “are not excommunicated, and they absolutely must not be treated that way”), to name a few.

Yes, it’s a slippery slope to argue that what the Church finds “immoral” should strongly influence the government’s view of and response to such behavior. Indeed, had the Church not historically condemned homosexuality, allowing for so many to be shunned and discriminated against, would civil law have waited so long to treat homosexuals better, and finally permit gay marriage?

Now, Judaism doesn’t have the hierarchical structure that Catholicism does. No one primary figure speaks on high for all of us – whether “infallibly” or not. Judaism, in particular, Orthodox Judaism, is nothing like that: we have separate, distinct groups – all with their own standards, rules, thinking and teachings, and leaders whom they often place on pedestals. There may be Orthodox communities or even sects that see the death penalty as indecent, even if carried out by secular rules. Other communities might not blink.

But shouldn’t religion – all religion – be more than mere instruction on loving and fearing God, and carrying out acts of ritualist obligation? Without the religious doctrine being overbearing – why shouldn’t religions attempt to bring moral teaching to society, as long as it doesn’t violate the First Amendment rights of other members of society? And isn’t taking human life even in the name of the state at least arguably immoral in today’s thinking?

Stated otherwise, why doesn’t Orthodox Judaism publicly denounce racism? Why doesn’t it condemn injustice, and not only when it affects their individual community, their congregants,? Why doesn’t belief in God mean that if other races and religions are being harmed by society that Judaism should be out front to make it better?

The Conservative and Reform blocs of Judaism actively oppose injustice. Consider rallies organized by Conservative institutions during the Darfur crisis – “Genocide is a Jewish issue.” Still, the Orthodox didn’t march alongside – could they possibly disagree with the notion that if you save one life you save the world? Or do the Orthodox adhere to the argument that the Talmud meant to save only a Jewish life? Yes, (the Orthodox) Lord Jonathan Sacks, a force of nature, to be sure, has in his far less dramatic way, spoken out about injustice, but largely to the Jewish world and, one might say, not like (the Conservative) Abraham Joshua Heschel, arms locked with Dr. King. And where are the rest of Orthodox leaders?

Many Orthodox Jews live in insular communities – they don’t typically interact outside their communities and there is no papacy representing us all to move us to engage with the world. In some ways, the failure to engage disserves those who live in Orthodox communities, but more so the rest of society. Pope John XXIII, elected in 1958, reached across the aisle, bringing his morality to Catholic teaching, and to Jewish communities. Born Angelo Giuseppe (Joseph) Roncalli, he supported Israel, and abhorred anti-Semitism. He met with Jewish leaders, telling them “We are all sons of the same Heavenly Father. . . I am Joseph, your brother.” And he created (without living to see it) Nostra Aetate, the progressive Declaration on the Relation of the Church to Non-Christian Religions.

I don’t here suggest that religion force its teachings on others. But I do suggest that religion and its moral teachings can and should help to make the greater society better. And Pope Francis seems to be causing Catholics to participate in, if not lead, the charge. Judaism – in particular Orthodox Judaism – which has lagged behind the others, should not miss an opportunity to be part of that conversation.

We don’t know how Catholics, or anyone, will react to the Pope’s latest pronouncement about the death penalty. Now, the axis of the law and religion has been the subject of scholarly articles and debate for millennia. It is reported that the Catholic Governor of Nebraska – which hasn’t executed anyone in 21 years – will carry out a death sentence, even though he previously hitched his pro-death penalty stance to the Church. Unmoved by the Pope’s comments, he now says that capital punishment remains the will of Nebraskans, and much as the death penalty is detestable, religious doctrine shouldn’t be the be all and end all of secular decision making. Yet, the late Supreme Court Justice, Antonin Scalia, firmly opposed to death penalty abolition, famously said, some years back: “If I thought that Catholic doctrine held the death penalty to be immoral, I would resign. I could not be part of a system that imposes it.” If Scalia were alive today in the face of Pope Francis’s “amendment” of the catechism, would he have vacated his seat, or maybe even decided to change his vote? Think about what that says about the power of religion and societal mores. And think about whether it’s time for us to begin listening more carefully to “our brother Joseph.”

How will the current crisis facing Pope Francis be resolved? We don’t yet know; but even if he has been shortsighted in the extreme in addressing a serious moral – indeed, criminal – problem within the hierarchy of the Church, to toss to the side the important moral teaching that he has brought to the world by reaching beyond the insular world of the Vatican would be a grave mistake. We can learn much from him about “repairing the world.”

The Talmud teaches: “From all of my students have I learned.” Perhaps it should be read to include “all of our brothers.”

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and works of Biblical fiction including “Moses: A Memoir.” The opinions expressed in this article are Mr. Cohen's and not necessarily those of the Stroock firm or its lawyers. Dale J. Degenshein, a Stroock colleague, assists in preparing the articles on this blog.
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