With Shavuos behind us, we’ve finished celebrating the Ten Commandments. This section of Torah is moving and its importance cannot be exaggerated, almost. Still, we move on. For most of us, the whole of Torah cannot be reduced either to 10 Utterances nor to a single précis (e.g., Hillel’s version of a Golden Rule, bShab 31a).
Unfortunately, some Other People have managed to exaggerate even the importance of the Ten Commandments. Who? Consider those who would deploy The Ten Commandments in a monumental effort to etch a particularist reading
of “Judeo-Christian” values into the base of the U.S. legal system. And I don’t mean a Mishpat ‘Ivri
, American style. Instead, I refer to Christian theocratic efforts
to throw American jurisprudence back to the nineteenth century, when states had established churches and “religious freedom” meant, in its crudest form, the freedom to be Protestant.
Today, religious freedom in the USA is “Good for the Jews” whether we be Black Hats or baseball hats. Not that every judicial decision has favored or recognized Jewish needs. Indeed, practice-oriented religions like Judaism(s) are far less protected than belief-based religions (e.g., Protestantism). Arguably, the freedom of religion is not a necessary condition for our flourishing; as W. F. Sullivan explains in a "timely and iconoclastic" new book
, it may be impossible to define religious freedom: the federal government could just as well protect Jewish et alia practices through other constitutional freedoms.
How might U.S. law better accommodate communal religious practices? I’ve got various ideas and would welcome yours, too. Meanwhile, it occurs to me that a recent daf yomi
passage might jog our thinking on the subject:
If a spark flies out from under a blacksmith's hammer and went and damaged another's property, the blacksmith is liable. If a camel laden with flax was passing through the public domain and its flax protruded into a shop [a private domain] and was ignited by the shopkeeper's light and the burning flax set a mansion outside ablaze, the camel's owner is liable for all damage to the building. If, however, the shopkeeper placed his light outside the shop in a public domain, the shopkeeper is liable. R'Yehudah says: in the case of a Chanukah light, the shopkeeper is not liable. . . . (bShab 21b).
Here, flax is a flammable, almost hazardous material. Ordinarily, when judging a hazardous material fire, the sages hold liable the owner (e.g., shopkeeper) of a flame that had been unwisely placed in a public thoroughfare. So don’t light a torch as the gasoline trucks roll by. However, according to Rabbi Yehudah, Jewish law should make an exception for Chanukah lamps.
Can we say that here that rabbinic “civil law” should accommodate the exercise of the Jewish "religion"? By assuming that adults take reasonable precautions, Rabbi Yehudah expects camel drivers – and the rest of us – to adjust to the practice of Chanukah lighting.
Now, would we agree that Jewish law (halakhah)
should adjust to the Chanukah lights as a mitzvah,
a special religious duty? Or, further, is halakhah
to be shaped by any analogous cultural practices? For instance, consider other social practices that require caution. Suppose a shopkeeper places in the public domain not Chanukah lights, but another predictable hazard, like Xmas lights. Would the shopkeeper still not be liable?
(Haven’t looked into post-Talmudic Jewish law yet, which does not accept R. Yehudah's minority opinion [Shulkhan Arukh, Rambam
]. Nonetheless, it is safe to say that such questions about the exercise of religious practices cannot be resolved by the rabbis – or by U.S. judges – simply by resorting to the Ten Commandments.)
P.S. Yes, nowadays hazardous materials transport is more complex. For instance, to what extent should the camel-driver/owner be held liable for their ruptured tanks
in the recent chlorine-laden railroad accident? Or are the workers to blame
, as the Secretary of Transportation Norman Mineta claims?
P.S.S. Thanks to Daf Am Haaretz
for the Artscrollian translation and the topic.
 Hence, wearing a kippah is not constitutionally protected.