B’haalotkha: "One Law for All" Doesn't and Shouldn't Mean That.

Whenever I read in the Torah, as we do this week, “There shall be one law for you, whether stranger or citizen of the country,” (Numbers 9:14), I think of the U.S. Constitution.  The Fourteenth Amendment declares: “nor shall any state … deny to any person … the equal protection of the laws.” 

At first thought, the concepts of “one law for all” and of “equal protection” may seem to mean the same thing, and a very good think, at that.  But upon further reflection, it becomes clear that they neither mean the same thing, nor that we would want them to.   

“Equal protection of the laws” does not mean that laws can’t distinguish between one person and another.  Here are just a few examples: 

•    Only citizens can vote.  
•    Only adults can buy liquor and gamble.  
•    In some states, same-sex marriage is still prohibited (although the Supreme Court may change this soon).  
•    Only certain people are eligible receive food stamps.
•    College students receive government subsidies loans.

A complete list of legal “discriminatory” practices would be lengthy indeed, if even possible. So, “equal protection” certainly does not mean “equal before the law in all respects.”  The government (i.e., laws) can and does legally discriminate if the reason and/or policy interest is considered legitimate.  In fact, the courts apply different standards to different types of discrimination, such as tax benefits vs. marriage eligibility.  

Nor does the Torah verse stating, “There shall be one law for you, whether stranger or citizen of the country” carry the sense of “no discrimination is permissible.”  In fact, the context of this verse is more restrictive than permissive!  The preceding verse, to which it applies, states: “And when a stranger who resides with you would offer a passover sacrifice to the Lord, he must offer it in accordance with the rules and rites of the Passover sacrifice.”

Exodus 12:48 also clarifies that only circumcised male strangers may make the Pesach sacrifice.  Here, too, “discrimination” per se is not seen as immoral; in judging it, one must look at the underlying rationale.  As with American law, “one law for all” doesn’t actually mean that.  It only means something like “the law must be applied equally to similarly situated people,” or, “the law can’t arbitrarily discriminate between people.”   

Unfortunately, the basic principle that discrimination is not only permissible but is often desirable is too often overlooked in criticism of “discrimination.” These days, it’s “politically correct” – even in the very highest echelons of American government, to say nothing of on college campuses and in the media – to criticize as immoral and even as “racist” Israeli laws that discriminate against any person – for example, Arabs, women, non-Orthodox converts to Judaism, and non-Orthodox rabbis.   

But a rallying cry of, “Israel should treat all people equally” is itself unprincipled. Any particular form of discrimination may or may not be justified depending on its rationale and policy goal, whether goals can be achieved by less discriminatory means, and by an assessment of the risk in less discriminatory law.  

How should Israel ensure the continued existence of a Jewish state?  Are those who call that goal “racist” unfairly discriminating against Jews as a people?  What about a state for the Palestinian people?  Are those who oppose that goal racist?  Does it matter if the existence of the latter would threaten the existence of the former?  Or, conversely, if the absence of the latter threatens, due to demographics and international approbation, the existence of the former?  Which policy objectives are legitimate?  Which means to achieve legitimate objectives are legitimate? 

The Torah is replete with approved or mandated examples of “discrimination.” Certain people – priests, men between certain ages, mothers after childbirth, for example -- may or must do or receive; others may/must not and do not.

Distinguishing between good and evil, light and darkness, morality and immorality, holy and profane, all require “discrimination.”  

Let us, therefore, not try to eliminate discrimination, but instead elevate the standards we use to make distinctions. When we encounter criticism of “discrimination,” let us inquire about the purpose of the discrimination is, whether such purpose is legitimate, whether the means are legitimate and/or necessary to accomplish that purpose, and about the risk of alternative action or inaction.  

Then, we can help ensure that our “discriminatory practices” are for the sake of principle, as well as for the sake of Heaven.  

Shabbat shalom from Jerusalem. 

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A bird that you set free may be caught again, but a word that escapes your lips will not return.
Jewish Proverb