#as in what is deemed illegal is arbitrarily determined by the state

[the-art-of-evil-thoughts]

It’s interesting how whenever people say “crime is increasing” it’s assumed that they’re talking about *violent* crimes, because to these people there is no meaningful distinction between violent and nonviolent crime—the mere act of committing a crime is seen as indicative of a violent or “dangerous” personality (as someone said above, this is especially true regarding perceptions of people who use criminalized drugs). This obviously ignores the fact that most crimes are nonviolent and that many do not serve to protect or otherwise benefit the general populace, but actually actively harm those who are most marginalized (the poor, the unhoused, people of color, etc.). And don’t even get me started on the selective crackdowns on things like drug use as opposed to “white-collar” crime by rich (and often white) people that actually has the ability to cause great harm to a large amount of people.

[ruminativerabbi]

This Week in Israel

There are two ways to approach this week’s decision by the Supreme Court of Israel regarding conversions to Judaism undertaken by non-Orthodox Jewish groups: as a big deal and as not such a big deal.

The not-such-a-big-deal approach would have to be rooted in a narrow appraisal of what actually happened: the court voted that, with regard to their right to Israeli citizenship under the Law of Return, the Ministry of the Interior does not have the right to distinguish between individuals who convert to Judaism based on the specific rabbinic group that oversaw their conversion…and that this obligation not to discriminate between converts applies even if the conversion in question took place in Israel itself. That last sentence will require some unpacking for at least some, but the underlying idea is simple enough: the Ministry had been obliged by law for decades to respect the conversions of converts from all denominational streams within Judaism if those conversions took place outside Israel. Weirdly, though, this entirely reasonable policy was denied people who convert to Judaism in Israel itself, where the right of the ultra-Orthodox to control those instruments of government that determine matters of personal status—marriage, divorce, Jewishness, etc.—has practically gone without saying since the state was founded seventy-three years ago. On top of that (in the weirdness scale, at least) is the fact that we are, at the end of the day, speaking about only very few people: there aren’t that many non-Jews in Israel who are interested in conversion and the Masorti movement, as the Conservative movement is called in Israel, and the Reform movement together only convert between thirty and forty individuals in a given calendar year. So it’s not like the decision is going to affect a lot of people or alter the fabric of Israeli society in any meaningful way. Why then, the naïve outside observer might wonder, is everybody reacting so strongly to this week’s decision?

It’s a good question. For one thing, the matter has been simmering on the back-burner for a long time. (Click here, e.g., to read a New York Times article from 2005 about the original court case relating to conversions outside of Israel.) But it’s also true that civil rights issues—both as played out in the court of public opinion and as tried in real court—are often so narrow in scope as to sound petty or even unimportant…other than to those who realize the potential implications and ramifications of the decision the public or the court is being challenged to reach. (To cite an American example, it would be missing the point almost entirely to think that all that legal wrangling in the 1960s about desegregating lunch counters or public buses was about luncheonettes and buses, as opposed to being about the larger issues they represented with respect to the civil rights of Black Americans.) And that is, I think, what we have here: a Supreme Court decision that will affect fewer than four dozen people in the course of an average year, but which has ramifications for Israeli society that will extend far beyond the narrow scope of decision itself.

As though they were actors stepping out from the wings to recite the speeches an unseen playwright put in their mouths, the various spokespeople for the various segments of the Israeli population duly appeared in one media-context or another to deliver their pre-assigned soliloquies. The Israeli Chief Rabbinate, a group wholly under the sway of the ultra-Orthodox, was almost sputteringly speechless in its dismay, predicting the imminent collapse of Israeli society if even one single convert to Judaism who hadn’t committed fully to a hareidi lifestyle were ever to be permitted to slip past the gatekeepers. For their part, of course, the spokespeople for Masorti and Reform Judaism were on-line instantly to express their delight. And the largest secular civil rights organizations also spoke uniformly approvingly of the decision. I even noted some actual converts to Judaism putting their two p’rutot in and expressing their gratitude to the court for its decision enabling them to live as they choose in a free country that, at least in theory, has always guaranteed the equality of its citizens before the law.

As is always the case, however, there are several elephants in the room.

The first is that the Supreme Court decision affects the Ministry of the Interior only and requires that it, as a branch of the government, not distinguish arbitrarily between individuals based on data deemed by the court to be extraneous to the adjudication of their situations. What that means practically is that the Supreme Court decision does not oblige the Rabbinate itself to consider converts outside of Orthodoxy as valid Jewish people—and in a county where there is no such thing as civil marriage and Jews can only marry with the approval of the Rabbinate, that matters a lot. (There isn’t even civil burial in Israel: the cemeteries and the Burial Societies that serve them are too in the hands of the Rabbinate.) So these handful of converts, whose status with respect to matters handled by the Ministry of the Interior has now been settled, still have a Sisyphean task before them if they wish to do any of the various things most Israelis take for granted, among them getting married and having the government recognize the union, getting divorced and being enabled to re-marry, dying and being buried in a Jewish cemetery. So it wouldn’t be that wrong to say that this week’s decision creates, rather than heals, an important schism in Israeli society by creating a class of civil Jews who have the formal status, but only very few of the basic rights, Jews born to the faith take for granted. So that’s one of the elephants in the room, known to all but mentioned, as far as I could see, by almost none in the wake of this week’s decision.

And then there are the Russians. This is huge. Over a million Jews from the former Soviet Union have immigrated to Israel since 1989 and today those immigrants and their descendants constitute more than 15% of Israel’s population. The detail that distinguishes the Russians and other FSU types from other large immigrant groups in Israeli society like Jews from Iraq or Yemen is that something like a full quarter are not considered Jewish by the Chief Rabbinate. There are a lot of reasons for that, mostly related to the fact that Jewish life was suppressed for so long under the Communism that there were relatively few Jewish families that remained fully intact and intermarriage with non-Jews was rife for decades. Layered over that fact is the reality that many of these people—most of them, in fact—have been living in Israel for decades now, speak fluent Hebrew, have served in the IDF, and think of themselves as “real” Israelis. Except that the Chief Rabbinate refuses them the right to marry, to be buried in Jewish cemeteries, etc. No one seems sure how to fix the problem either—nor does this week’s Supreme Court decision go very far towards finding a solution since it only affects the policies of the Interior Ministry and the immigrants from the FSU are all citizens anyway.

The closest parallel for Americans to consider is the one between these immigrants from the FSU and the undocumented immigrants in our own country. Everybody agrees that having 11 million undocumented souls living in our midst but not paying taxes, not paying into the Social Security system, not feeling free to phone 911 if they are in danger, not participating in national or local elections—the one thing upon which everybody seems to agree is that the status quo is intolerable and has to be addressed. But how exactly to address it is a different question entirely. The notion of rounding up all 11 million people living illegally in this country and deporting them to wherever it is they came from in the first place is an idea that appeals to many in theory, but lacks any real practical possibility of ever happening. The ideas put forward by the current administration, and particularly by Alejandro Mayorkas, Secretary of the Department of Homeland Security, seem to presuppose that the only real solution is to find a path for these people to seek citizenship that would involve some level of catch-up (for example, paying taxes on money earned in the U.S. during their time here but on which they never paid income tax) and would exclude criminals. Eventually, we have to deal—one way or the other—with these millions and millions of people!

And the parallel is almost exact: Israel cannot simply look away and ignore the fact that 15% of its Jewish population simply isn’t Jewish enough for the Chief Rabbinate. (That they are considered more than Jewish enough to serve in the IDF only adds fuel to the fire.) And the only practical solution has to do with conversion: since these people were already not born Jewish, at least not technically, a procedure has to be evolved for them formally to embrace Judaism and solve the problem that way. Since such a solution would almost definitely have to involve the more liberal denominations whose understanding of religion in general and Judaism in particular are more sophisticated, more scholarly, and more intellectually and historically justifiable than the extremist Orthodoxy of the Chief Rabbinate, the Supreme Court decision this week speaks indirectly to that whole set of issues by bestowing the mantle of legitimacy—if not in the eyes of the Rabbinate, then at least in the eyes of the State—on people who convert through movements more given over to the principles of tolerance, non-judgmentalism, pluralism, and intellectual integrity.

So those are the two elephants hiding in full sight for most Israelis. And that is why this week’s Supreme Court decision not only matters, but has the potential to be truly transformative in the effort to create a kind of Israeli Judaism that rejects the kind of know-nothing fundamentalism that is the hallmark of the kind of Judaism represented by the Chief Rabbinate and in its place embraces a version of Judaism rooted in acceptance, fairness, tolerance, and spiritual integrity.

[real-american]

Let me try again with a little bit more time here to explain why Texas is suing four other states. And it is a big case. If the Supreme Court does not take this — well, maybe there’s something I don’t know that would give them grounds not to take it, but this is a very, very serious thing here, because you have four states that violated their own laws in the process of counting ballots and assigning ballots. They are Georgia, Michigan, Pennsylvania, and Wisconsin. And the lawsuit filed by the state of Texas says that changes that these four states made to election procedures among the coronavirus pandemic are illegal. They’re not lawful.

Now, Ken Paxton is the Republican attorney general of Texas. The lawsuit was filed directly with the Supreme Court, as is permitted for certain litigation between states. The Supreme Court currently has a 6-3 conservative majority, including three justices appointed by Trump. Now, the court doesn’t have to take the case. They don’t have to take any case.

But this is a very serious allegation, because in these states, any election, any changes to election law must come from the state legislatures. They have what’s called plenary power over election law. Individual officeholders in these states cannot arbitrarily change election law, whether there’s a pandemic or not, whether there is some kind of a natural disaster brewing out there or not, they just can’t do it.

So people have said, “Well, why does Texas care?” Well, because if these four states are allowed to get away with basically undermining the United States Constitution, then all existing election law is moot. It’s out the window. And that’s why it is thought that the court here almost has to take it. Look, they don’t have to take anything. So it’s risky to put it that way. But the ramifications of not taking the case are pretty high.

This is a piece by Kris Kobach: “Texas Case Challenges Election Directly at Supreme Court – The State of Texas filed a lawsuit that is far more important than all of the others surrounding the presidential election of November 3rd.

“Texas brought a suit against four states that did something they cannot do: they violated the U.S. Constitution in their conduct of the presidential election. And this violation occurred regardless of the amount of election fraud that may have resulted. The four defendant states are Georgia, Michigan, Pennsylvania, and Wisconsin. Texas filed the suit directly in the Supreme Court. Article III of the Constitution lists a small number of categories of cases in which the Supreme Court has ‘original jurisdiction.'”

Meaning they can hear the case the first time it’s presented. Supreme Court’s an appellate court. And you gotta go through a bunch of different appeals stages to even get there. But this case can be heard the first time at the Supreme Court.

Now, “One of those categories concerns ‘Controversies between two or more states.'” Well, that’s what this is. “Texas’s suit is exactly that. The Supreme Court has opined in the past that it may decline to accept such cases, at its discretion. But it is incumbent upon the high court to take this case, especially when it presents a such a cut-and-dried question of constitutional law, and when it could indirectly decide who is sworn in as President on January 20, 2021.

“The Texas suit is clear, and it presents a compelling case. The four offending states each violated the U.S. Constitution in two ways. First, they violated the Electors Clause of Article II of the Constitution when executive or judicial officials in the states changed the rules of the election without going through the state legislatures. The Electors Clause requires that each State ‘shall appoint’ its presidential electors ‘in such Manner as the Legislature thereof may direct.'”

Here is the second constitutional violation that these four states engaged in who Texas is suing. “The second constitutional violation occurred when individual counties in each of the four states changed the way that they would receive, evaluate, or treat the ballots. Twenty years ago, in the landmark case of Bush v. Gore, the Supreme Court held that it violated the Equal Protection Clause of the Fourteenth Amendment when one Florida county treated ballots one way, and another Florida county treated ballots a different way. Voters had the constitutional right to have their ballots treated equally from county to county.”

Now, in these four states there is no question that the ballots were treated differently. That’s part and parcel of what happened here. Some of them were in suitcases. Some of them were under tables. Some of them were dragged out when Republican observers were sent out of the room. Some of them were allowed. Some of them weren’t.

“So when election officials in Wayne County, Michigan, ignored the requirements of Michigan law and denied poll watchers access to vote counting, while other counties in Michigan followed the law, that violated the Equal Protection Clause.” And that’s already precedent now from the Supreme Court. Same token. Wisconsin. “When the Administrator of the City of Milwaukee Elections Commission ignored the requirements of Wisconsin law and directed election workers to write in the addresses of witnesses on the envelopes containing mail-in ballots, while ballots without witness addresses were deemed invalid elsewhere, that resulted in the unequal treatment of ballots in the state.”

Let me go through that again. I want to make sure you understand what happened. The administrator of the City of Milwaukee elections commission ignored the requirements of Wisconsin law and told election workers to go ahead and write in the addresses of witnesses on the envelopes containing mail-in ballots. But other ballots without witness addresses were deemed invalid throughout the state. They threw them out. But not in Milwaukee. The head of the Milwaukee elections commission told observers, go ahead and write in an address on these ballots. Unequal treatment of ballots. Violation of the equal-protection clause.

Now, “Importantly, the Texas lawsuit presents a pure question of law. It is not dependent upon disputed facts. Although these unconstitutional changes to the election rules could have facilitated voter fraud, the State of Texas doesn’t need to prove a single case of fraud to win. It is enough that the four states violated the Constitution.” And that is what this suit attempts to illustrate. They don’t have to prove a single case of fraud. All they have to do is show these four states violated the Constitution, and that’s easy because they’ve already done it.

So “The lawsuit asks the Supreme Court to remand the appointment of electors in the four states back to the state legislatures.” They’re the ones who have the power to name them anyway. “As the Supreme Court said in 1892 in the case of McPherson v. Blacker, ‘Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time.'”

Now, “If Texas prevails, the four state legislatures could follow any number of courses in appointing their presidential electors. They could assess the election results and try to exclude those ballots that were counted in violation of state law in order to determine a winner, or they could divide their Electoral College votes between the two candidates, or they could follow a different path. But they have to follow the Constitution in whatever they do.” They have not followed the Constitution to date. This is what Texas is asserting. And they don’t want federal election law rendered moot and pointless and gutless or without any merit because of these four states.

Now, “In the rest of country, the states followed the constitutional rules in appointing presidential electors.” Just these four states where, magically, Plugs Biden ends up getting enough votes in swing-state cities to put him over the top, despite the fact that he attracted fewer votes here and there, among minorities and various other groups. These four states, “the offending states cannot be allowed to violate those same rules.” You can’t have 46 states following the law and four states flouting it. You just can’t. And that’s why it’s thought the Supreme Court is going to take the case. “It’s not just a matter of constitutional law. It’s a matter of basic fairness.”