Barbara Pfeffer Billauer
integrating law, policy, religion and science

When Rabbis Tread Where They Should Fear to Go

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It’s not unusual for Rabbis to pontificate on current events, comingling their political perspective with their Torah views– ostensibly trying to make their Torah teachings more timely and meaningful. When they invoke science or law, Rabbis without specialized training had best beware, lest they commit facile errors (perhaps from reading secondary reports in a scientifically or legally illiterate press) that eviscerate their underlying religious message.

In Purim 2020, one Rabbi heralded the imminent arrival of a COVID vaccine from the Israeli company, Migal, as the modern Purim miracle. SheAsa Nisim BaYamim Haheym, BaZman HaZeh, he wrote. (He who makes miracles then and now). Vaccine from Migal, you ask? Right. There is no vaccine from Migal. Nor was there ever likely to be – as anyone with any knowledge of vaccine production could predict. The company was working on an avian version of COVID, not one easily translatable to humans. That didn’t stop them, or the popular press, from hyping their imminent discovery. Nor did it stop an ignorant Rosh Kehilla from lauding the false hype, hopefully not inducing any investments by his members.

With this introduction, let me take Rabbi Shmuley Boteach to task for not only evidencing overly simplistic legal understanding (Cultural elites who despise faith, Jerusalem Post, Nov. 30,2021), but for contributing to, undermining, and endangering the perilous state of public health law at a time when governments are hard enough pressed to act for the public good. I write as an Orthodox Jew who attended Yeshiva through Seminary and one who ordinarily appreciates and respects Rabbi Boteach’s writing. I add this statement only to avoid facile attacks on this exposé of Rabbis who write where they are ignorant. I am criticizing Rabbi Boteach’s piece, not because I don’t agree with his views on religion (I do), but because he appears ignorant of the full panoply of underlying facts and the law incident to Governor Cuomo’s decision to restrict religious worship during the early days of COVID. Coming from someone of his level of authority, Boteach’s criticism of the ex-Governor’s attempts to protect public health has powers far beyond my meager attempt to correct these flaws.  Hopefully, I might diffuse some misimpressions he inadvertently conveys, saving lives, and beg mechilah for any embarrassment this may cause.

Memorialized in the Supreme Court case of Roman Catholic Diocese v. Cuomo, in the fall of 2020 New York’s then-Governor Cuomo all but eviscerated formal religious worship by an Executive Order limiting worship in “red zones” i.e., those with the highest COVID levels to ten worshippers and in “orange zones” to 25. The Catholic Church was incensed and took the Governor to task — and to court. Joining them in a separate filing, with separate briefs, was the Agudath Israel. The Supreme Court’s decision addressed both filings.

In contravention of hundreds of years of established public health law that deferred public health decisions to state and local authorities, the case, heard by a bench now including a newly minted conservative justice, was evaluated on the single notion of the importance of religion as a “necessity” – claimed equally as necessary as food and medicines. That New York refused to similarly regulate liquor stores and acupuncturists was the tip-off to the court that this was an anti-religiously motivated order. One (notably anti-choice) justice even bemoaned the unfairness to Orthodox women who would not be able to attend services – because they would be limited to ten men. (Nothing in the decision prevented 10 women from commandeering their own prayer group).

Conspicuous by their absence as plaintiffs are the OU, Young Israel, Chabad (all of which actually advised their patrons to adhere to health orders), or any other Chassidic Sect. Only Agudah joined political forces with the Catholic Church to raise the claim of religious trespass. Curiously enough, six months after they submitted their briefs, the Agudah backtracked and advised their members not to engage in public merry-making or group worship come Purim time.

Boteach appropriates a commonly voiced objection to the NY Order: that it reflects secular condemnation of religion. And while I agree that religious practice can be quite necessary – that is so only when it does not harm others. I cannot speak on behalf of Catholic dogma, and I have no idea whether the decision truly impacted Catholic religious requirements. On the side of Halacha, however, the situation is quite different from the way the Agudah portrayed it, as Rabbi Boteach surely knows.

While shul-going may be important, in the event of Saccanat Nefesh (threat to life), not only is it not required — but it is forbidden. Indeed, at the same time as Governor Cuomo’s order, the Israeli government (then including the Haredi parties) limited indoor prayer service to five persons – allowing prayer groups of ten people only outside, all while allowing access to liquor stores and acupuncturists. There was no opposition by the Haredi community. There were no objections by the women of my modern Orthodox shul – who were denied admittance to services for weeks. Many Orthodox and Haredi persons did not attend services on Rosh Hashana or Yom Kippur, either. Rabbi David Stav, chair of the religious-Zionist Tzohar, even opposed prayer services of ten men outdoors, saying it would not be possible to restrict them.

The Supreme Court’s decision and the Agudah briefs focus on – and only on – the importance of religious liberty. They ignore the competing concern of exposure to, and endangerment of, others by the activity in question. The question the court should have addressed is not solely whether religion is important, but whether the exposure potential from attending shul is the same as that for going to a liquor store, or an acupuncturist, or a hardware store. What should have concerned the Agudah – and Rabbi Boteach — was whether worship, including its frequency (three times a day), duration (several hours), and intensity (including singing, dancing, and parading with the lulav on Shemini Atzeret), constitutes a saccana, a grave danger, that preempts religious worship.

The Court’s decision, the Agudah brief, and Boteach’s article ignore the fact that Cuomo’s order was issued six days before Simchat Torah and three days before Hoshana Rabba. The Supreme Court probably could not conjure the exposure potential in Borough Park or Crown Heights on Simchat Torah. Yet I venture Cuomo was well aware of this when issuing his health order. Not two years earlier, Simchat Torah was the launch date of the worst measles epidemic the US had seen in thirty years – ground zero: a shul in Monsey and yeshivas and shuls in Borough Park and Crown Heights; the same zip codes registering the highest COVID stats. Indeed, that measles epidemic lasted an entire year- quelled only shortly before COVID overtook the same localities. And if Simchat Torah is not the sublimest invitation to mass exposure, then perhaps Hoshana Rabba is. In some shuls, the shofar is sounded, which some call a mass-spittle producing event.

The Agudah brief makes much of the fact that allowances were made for banks and shopping centers, claiming similar accommodations were not afforded places of worship. The last I’ve witnessed, no one is partaking in Simchat Torah singing, or drinking a Le’Chaim, or crowding under a Tallit – in a bank or shopping mall. No one frequents a bank three times a day for hours. No one dances in a store. That religious representatives turn a blind eye to the dangers that Tefilla B’Zibur (public prayer) can present during an infectious pandemic is not what I was taught Judaism is about.

That the Supreme Court was unable to balance the importance of religion and the likelihood of damaging exposure – is a sad comment on America’s highest court’s ability to balance two considerations simultaneously. That a Rabbi can fail to adhere to all the halachic implications that must be weighed, is, frankly, a shanda.  Could Cuomo have done a better job in more finely sculpting the regulations? Certainly. And if time were not of the essence, and thousands of lives were not immediately at stake, and Simchat Torah was not immediately approaching, I suspect he would have. Should New York State’s lawyers have introduced objective evidence of exposure measurements? Absolutely. So, yes, there were mistakes all around.  But to use the decision as an exemplar of the essentiality of religious worship during a pandemic – is a dangerous misrepresentation of what Judaism stands for.

About the Author
Grew up on Long Island, attended Cornell University (BS Hons.)and Hofstra ULaw School, MA in Occupational Health from NYU, Ph.D,. in Law and Science from Uof Haifa. Practiced trial law in New York City, Taught at NYU, University of Md Law School, Stony Brook School of Medicine. Currently Research Professor of Scientific Statecraft, Institute of World Politics, Washington, DC, Professor, International Program in Bioethics, University of Porto, Portugal. Editor Prof. Amnon Carmi's Casebook on Bioethics for Judges, Member of Advisory Board, UNESCO Committee on Bioethics. Currently residing in Netanya, Israel.
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