The Torah's "Equal Protection Clause."

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“Equal Protection Under the Law” is a bedrock principle of our American constitutional jurisprudence.  At least, that’s what I was taught in law school.  

 

But “equal protection” wasn’t part of either the original U.S. Constitution or its first ten Amendments, what we refer to as the “Bill of Rights.”  “Equal protection” didn’t become law until after the civil war.  That’s when the Fourteenth Amendment was enacted, forbidding states from denying, among other things, “any person within its jurisdiction the equal protection of the laws.”  Its focus was on protecting newly emancipated slaves, such as ensuring that they could own property, make enforceable contracts, and be court witnesses and jurors. 

 

The “any person” language of the Equal Protection clause is highly significant, as it is the basis for, for example, including non-citizens and even those in the US illegally in the equal protection of the laws requirement.

 

“Equal Protection” is also a bedrock Jewish principle.  It is stated several times in the Torah (e.g., Exodus 12:49, Leviticus 19:34, Numbers 15:15).  In this week’s Torah portion, Emor, the mitzvah is stated unequivocally at Leviticus 24:22:מִשְׁפַּ֤ט אֶחָד֙ יִהְיֶ֣ה לָכֶ֔ם כַּגֵּ֥ר כָּאֶזְרָ֖ח יִהְיֶ֑ה כִּ֛י אֲנִ֥י יְהוָ֖ה אֱלֹהֵיכֶֽם׃ 

You shall have one standard of judgment for stranger and citizen alike: for I the LORD am your God. 

 

We are so accustomed to this principle that we might not stop to consider why this should be so.  Why should people who are not from here, or who are not like us, who may be here only temporarily, who may have broken our laws to enter, or who may not share our traditions and our values, benefit from the protection of our laws?  

 

The first reason is the principle that everyone was created in the Divine Image.  In his book Morality, Halakha and the Jewish Tradition, Rabbi Shubert Spero writes that, “Since everyone is created in the image of G-d, false and irrelevant distinctions must not be introduced to disqualify human beings from their right to justice.  … The fatherhood of the one G-d implies the brotherhood of all men, which generates the concept of universal morality.”  

 

A second reason for equal protection is to combat the prejudice and abuse that both leads to and results from differences in attitude about an individual’s worth when different standards of justice apply.  Rabbi Joseph Telushkin has observed that throughout history, strangers in societies all over the world often have been denied basic rights and discriminated against.  The Torah’s ancient injunction that there be “one law for you and for the stranger who lives among you" continues to represent the cornerstone of a just society. 

 

Rabbi Nachum Amsel points out that there is no permitted discrimination in Judaism by class or social strata. Even the elite have no special privileges under the law of Torah. This is emphasized by the special commandment for the Jewish king to write a second Torah scroll (every Jew is commanded to write one) (Deuteronomy 17:18 – 20) in order to remind him that despite special powers granted to the Jewish king, he is still subject to Torah law like every other Jew. 

 

It’s obvious that the principle of “equal protection” has never been fully achieved, certainly not in any large society we know of.  The Torah itself did not outlaw enslaving non-Israelites, although it went to lengths to protect servants, such as including them in the required rest of Shabbat, and mandating their release if physically abused.  Here in America, women and Blacks did not receive equal protection even after the Fourteenth Amendment.  Women could not vote, and racial segregation was pervasive.  Chinese suffered discrimination and exclusion, and Japanese were held in internment camps during WWII.  Neither, of course, did Jews receive equal protection, as with quotas on state university admission and legally permitted restrictive real estate covenants.  

 

In Germany, anti-Semitic discriminatory laws preceded the Holocaust. In Israel, Palestinian non-citizens and even Palestinian Israeli citizens do not receive fully equal treatment with Jewish Israelis.  Neither do African immigrants.  

 

Most recently, in America, prejudice and discrimination against Asian-Americans has moved to the headlines.  The Jewish people know very well what such discrimination feels like.  We must fight against it, and indeed against all forms of racial and ethnic discrimination. People are individuals and should be judged on their own merits

 

On a personal note, two years ago, when I was diagnosed with cancer, my family and I undertook a search for an oncologist to help prolong my life.  I’m happy that it never occurred to us to take ethnicity into consideration, and we chose a doctor from Korea.  A doctor from India supervised my chemotherapy, and it was administered by nurses from the Philippines, Columbia, and Ethiopia, as well as from the US.  What mattered were their qualifications, experience, reputation among their peers, and caring demeanor – not their race or ethnicity.  

 

May we be reminded that everyone is entitled to justice and to “equal protection.”  We should live by the Torah’s principle that there be “one standard of judgment” – that of treating everyone as an individual created in the Divine Image, just as we are.   

 

It is a test of our humanity, and of our holiness.

 

For more information about this and many other Jewish ethical topics, please visit www.theethicaltorah.com.  

 

Shabbat shalom. 

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