The Real Opportunity Confronting Israel

US Secretary of State John Kerry and Ukrainian President Petro Poroshenko.

US Secretary of State John Kerry and Ukrainian President Petro Poroshenko.

Iran has performed the steps required under the multinational agreement negotiated last year.  It has dismantled its rapid capability to  develop a nuclear bomb, has accepted international monitoring, and now is released from international sanctions. A new era of better relations between Iran and the U.S. could happen. Israel’s inappropriate attack in the U.S. Congress on the multiparty agreement with Iran  could be forgotten.

Or could it? Israelis need to address the next phase of their relationship with Iran and the the Arab states and with the U.S. Will the Netanyahu government seek to participate in the coming U.S. presidential election in a continuing battle to advance American militarism and the candidates who walk that line? Or will  Israel take the opportunity that the Iran Agreement offers to try for a better future?

Argument will not cease over whether the Iran Agreement is good or bad, or better or worse than the U.S. (and the nations China, France, Germany, Russia and the United Kingdom who joined with us) might have achieved. What is undeniable is that the Agreement sets the stage for a 15-year period of opportunity.

David Hazony argued that Netanyahu is a centrist measured against the majority of the Israeli body politic. He said that American Jews in the “moderate middle” have lost touch with the authentic Jews and Jewish sovereignty that exist in Israel today.

But leadership, whether by Netanyahu or Obama, has the obligation to carry us in productive directions. For America this means building relationships across the world, because we are the preeminent world power. For Israel this means building bridges between their political island and the sea of Arabs that surround them.  At a minimum, Israelis must accept that their government has no veto on American foreign policy, and must make its own way.

Israelis may believe that they are invincible. Their government may have sold them the idea that they can live with occasional terrorist activity, and if the level of that activity grows objectionable from time to time, they can launch a military strike to quell it.  As a standing bet, that is tough. Technology moves forward, and seemingly impervious defenses are sometimes breached. Then there is the question of sustaining a confrontational posture in the face of a growing Arab population within Israel.

Israelis need to find their own pathway to the future. The challenge to Israel today is to make the best use of the 15-year multinationally supervised breather with Iran, its most vocal enemy. Every step Israel can take to come to terms with its Arab neighbors that remain estranged, and everything that Israel can do to advance the condition of Arabs within and along its borders, deserves to be explored in the most serious way.

That is the real opportunity that is available to Israelis. We can hope that they are not blinded to it by the ferocity of the rhetoric of their leadership.

Reinterpreting the Religious Freedom Restoration Act

070314.N.DNT_.HobbyLobby%201_0[1]Blowback for the Jewish Community?

Jeffrey I. Pasek spoke recently to a large and completely engaged audience at Congregation Adath Jeshurun in Elkins Park about the Religious Freedom Restoration Act (RFRA) and why Jews should care about it. Pasek, a partner in the Labor & Employment Group of the law firm Cozen O’Connor and a longtime leader in Jewish communal affairs, explained the modern legal history of religious freedom under the First Amendment and its statutory sequel, the RFRA. He discussed the Supreme Court’s unexpected expansion of this law and the potentially troubling consequences it could have. [Read more…]

Voting Rights In the Wind?

How_to_Steal_an_Election_-_Gerrymandering.svgThe right to vote is a foundation of American democracy, along with freedom of speech and the press. When the Supreme Court speaks on the subject, or even just listens, it has an importance well beyond the seemingly minute legal details that the Justices can take up. On December 8 two voting rights cases came before the Court.

Voters are slotted into districts from which they choose their members of Congress and their state legislators. Although individual ballots are secret, today computers can tell us a lot about voting habits, and can redesign districts to shape the outcome of elections. Increasingly, elected officials know how to use this technology to choose their voters and assure their continuation in office.

One of the  two cases before the Court was the oral argument in Evenwel v. Abbott, in which Texas citizens complain that the number of registered voters varies widely between voting districts. They want the Court to require equal registration in each voting district, even if that results in widely different populations represented.  The second docket was Shapiro v. McManus, in which the Court unanimously decided that the challengers to a gerrymandered voting district in Maryland made out a case for a  three-judge trial court.

Historically the establishment of voting districts was a state legislative matter, a political matter that received very little attention from the Court.   As population moved and changed, often voting maps stayed the same, resulting in very large inequalities in representation.  Then in Baker v. Carr in 1962, the Court declared that unequal districting could be justiciable, and two years later declared that fair voting districts must have closely equal population. Since then, redistricting carried out every 10 years has focused on population equality.

Evenwel argued that population may be equal, but there are 50% more voters registered in his Texas district than the number of voters in some other districts.  Therefore he claimed that his vote has less weight than votes of those in the other districts. But is this a denial of equal protection under the Constitution?

History favors the present practice. The Constitution allocates congressional districts among the states in proportion to total population, not voter registration. Women and children were counted well before the 19th Amendment giving women the vote. The ignoble three-fifths compromise was based on the number of slaves, none of whom could vote. For the 60 years that we have had the need to equalize voting districts, population has been the measure.  Almost every state follows the same model in drawing the voting maps for the  state legislature as well.

The State of Texas argued for allowing states to continue to base districts on equalizing population. Counting voter registration, not population, would seem to exclude people who cannot vote from representation: immigrants who are not yet citizens, undocumented people, those who are less than 18 years old, as well as those who decline to vote for religious reasons.  Philosophically, legislators are expected to represent and serve all people, not just registered voters.

More practically, voter registration changes materially in ways that population usually does not. Before a presidential election, registration rises. If those registered decline to vote in “off year” elections, state law may strike them from the polls. Moreover, our reapportionment is based on the national decennial census which does not try to document voter registration, usually purely a matter of state law.

What appears clear is that Evenwel’s proposition, if adopted, would significantly shift voting power from urban to rural areas. So there is much riding on the Court’s decision, which is expected in June 2016.

Shapiro presents a seemingly narrow question but has the Court watchers sifting the tea leaves for some hint that the gerrymander problem may be seriously addressed in the future.

In a district that is gerrymandered to favor one party, voters of the other party may as well stay home. They cannot hope to alter the result in an election. In such districts, important decisions are made in the primary, but only the primary of the favored party. In most states a voter can take part only in the primary of the party in which he is registered.

An obvious inconsistency in the Court’s jurisprudence is the exacting attention to equalizing the population of districts, while allowing gerrymandered districts in which disfavored voters need not even go to the polls. It is estimated that 90% of congressional districts are “safe” seats in which one party has control; how many of these districts are intentionally gerrymandered is less clear, but it is surely an important number.

Federal law grants a person challenging the constitutionality of a voting district the right to a three-judge district court for trial. In this case individuals challenged their district on grounds that it was formed from two separate areas, linked by a “ribbon” and created solely to disenfranchise the voters in the smaller half of the barbell shape.

A single judge of the United States District Court for Maryland decided that the plaintiffs did not have a claim sufficient to go to trial, based on an unbroken line of rulings of the Supreme Court and lower federal courts that district maps — except in cases of racial discrimination — are non-justiciable. Reasoning that the plaintiffs had not shown a claim sufficient to even get to a trial, the single judge rejected the claim for a three-judge court and dismissed their case.

The Supreme Court reversed and remanded the case. Justice Antonin Scalia, usually in the vanguard in cases dismissing gerrymander claims, wrote the brief opinion ruling that the plaintiff voters’ claim against the barbell district could not be dismissed as “insubstantial.”

Alone, that ruling might itself be insubstantial. But Scalia chose to find support in Justice Anthony Kennedy’s concurring opinion in Vieth v. Jubelier in 2004. That case is the leading modern decision that election districts are political and non-justiciable.

In concurring with that decision, Justice Kennedy stated: “I would not foreclose all possibility of judicial relief [in a future case] if some limited and precise rationale were found to correct an established violation of the Constitution …” Justice Scalia wrote the opinion of the Court in Vieth, and included an extensive critique chiding Justice Kennedy’s “never say never approach.”  It seems that “never” may have arrived.

So should we hope that Justices Scalia and Kennedy have now discovered that some gerrymanders are “justiciable” and will join with the more liberal wing of the Court to grant voters relief in Shapiro or future cases? Stay tuned for more words from the Court.

Note: The author is chair of Common Cause of Pennsylvania, one of the nonprofit groups participating in briefs before the Supreme Court in these two cases.

Redistricting Looking Up in Pennsylvania

Maryland's 3rd Congressional District

Maryland’s 3rd Congressional District

The new makeup of the Pennsylvania Supreme Court as a result of the election this month changes the prospects for repairing the way we set our voting districts.

Because Pennsylvania judges, once elected, only run for retention and that occurs only every 10 years, it is very likely that the Democrats sitting on our Supreme Court as of January will still be in the majority in 2021 when the next census is released and the redistricting process plays out.

Republicans control our state legislature and so control congressional redistricting.  Because of the gerrymander in place, it is quite likely that the legislature will continue to be held by Republicans in 2021, even if Pennsylvania continues to trend toward the Democratic Party.

However, the our state legislators run in districts drawn by the Pennsylvania Legislative Reapportionment Commission. Four legislators, two from each major party,  sit on our legislative reapportionment commission.  But the fifth member, the “swing vote,” is appointed by the Pennsylvania Supreme Court if the other four members cannot come to agreement.

Any challenge to the 2021 redistricting under the one-man one-vote principle will inevitably go to the Pennsylvania Supreme Court for review.  Even with a reform of the political redistricting method, such as S.B.484 submitted by Senator Boscola to substitute a citizen commission, all issues ultimately go to the Pennsylvania Supreme Court for a binding decision. Thus with Democratic judges in the majority on the court, the seeds of ultimate destruction of the present gerrymander are planted.

Moreover, if Democrats take over the legislature, it would be no more than human nature for them to develop a redistricting plan just as lopsided in their favor as the present plan is lopsided in favor of the Republicans.

So the Republicans who control the legislature now have every reason to adopt a fair process that is not likely to produce a highly political gerrymander in 2021.

As for the congressional districts, they are set every tenth year by a statute adopted by the legislature. So the Governor also has a role to play in signing or vetoing whatever bill is produced. If Governor Wolf earns a second term in office that would be his opportunity to work to level the playing field – or even tilt it his way, if he felt so inclined.

Thus there is plenty of reason for Pennsylvanians to continue to press for reform. What may be different now is that there is also plenty of reason for Republicans who control the General Assembly to join with Democrats to reform the flawed redistricting system.

Palestinian Speaks Against BDS — Or Not

Bassem Eid

Bassem Eid.

Bassem Eid, billed as the former director of the Jerusalem-based Palestinian Human Rights Monitoring Group, was born in Jerusalem but spent most of his life in a refugee camp.

Eid addressed an audience of close to 100 people on November 4, 2015 at Congregation Beth Hillel Beth El in Wynnewood. Continuing with a speaking tour that has taken him across the nation, Eid explained his claim that the boycott, divestment and sanctions program targeted at Israel (BDS) is harmful to Palestinians.

Eid’s talk was sponsored by Gratz College and the organization Scholars for Peace in the Middle East. David Weinstein, chairman of the Gratz Board of Governors, Yaron Seideman, Israeli consul in Philadelphia, and Jon Cohen, vice president of the Scholars for Peace organization, each gave introductions of the speaker and attacks on BDS.

Consul Seideman described BDS as anti-Semitic and an effort to “deprive Israel of a voice.” According to Cohen, Eid is a critic of the security forces of both Israel and the Palestinian Authority.

As Eid describes the problem of the Middle East, the issues are Hamas on the one hand, the Palestinian Authority under Abbas, and finally Israel. He blames Hamas for destroying economic recovery in Gaza that began in the period of Israeli control beginning in 1967. The PA, Abbas and Israel are blamed for entering agreements and then not moving forward to carry them out.

The disengagement of Israel from Gaza, according to Eid, was Prime Minister Sharon’s biggest mistake. By withdrawing and leaving a vacuum, Sharon allowed Hamas to take over and to claim credit for forcing Israel to withdraw. The Oslo Accords also have damaged the Palestinians, substituting a dictatorship of Abbas for the dictatorship of Arafat.

Today, according to Eid, all three parties are relatively satisfied. Hamas has Gaza, Israel transfers funds to the PA but maintains security, and Abbas has lost popularity and could not win an election but remains in full control.

BDS, says Eid, is just another organization sapping money that could otherwise be used to advance the welfare of Palestinians. He complains that the organization lacks transparency, but suspects that it is the “precursor of a genocide against Palestinians.” Its goal is to destroy both the Israeli and Palestinian economies. Boycott, he says, is not real but just “stickers” and posters playing on Arab cultural susceptibility and the force of nationalism.

Responding to questions from the audience, Eid reiterated his view that improving the Palestinian economy would relieve the conflict. Economics, not ideologies or religion, is the controlling force in his view.

Famed Jewish Heritage Program Coming to Philadelphia


Class 25 of the Wexner Graduate Fellowship. Photo: The Wexner Foundation Facebook page.

The Wexner Heritage Program was established in 1985 to expand the vision of Jewish leaders and develop their skills with intensive training in religious and institutional foundations of our community.

In a meeting of non-profit agency executives called by Jewish Federation of Greater Philadelphia this month, plans for a new Wexner Heritage Program to be launched in Philadelphia were announced by Rabbi Deborah Glanzberg-Krainin.

The program was last offered in Philadelphia in 1991. Rabbi Jay Henry Moses, Director of the Wexner Heritage Program, described the goal and methods used to develop leadership, based in part on studying Torah and Talmudic sources. The program runs two years, including three one-week summer programs, and evening classes every other week through the winters.

Rabbi Moses taught a tractate from the Babylonian Talmud as an example of the ways in which the Wexner program draws lessons in great leadership applicable to community needs today. He explained that leadership means to the Wexner Foundation the ability to recognize the basic factors that require change in the community, mobilizing people to tackle change, and timing change to “disappoint people at the rate they can tolerate.”

The Jewish community today faces issues surrounding Israel, the weakening of traditional Jewish lifestyle, and other challenges, and has need for a younger generation of adaptive leadership, according to Moses.

The Wexner Heritage Program is focused on community people, generally between the ages 30 and 45. The Foundation and Federation will seek up to 20 qualified participants for the program, which is expected to cost approximately $700,000, with half coming from the Foundation, and half from special fundraising by the Federation.

A form for use to nominate promising individuals is available on the Wexner Foundation website.

Iran Deal “Doomed to Succeed,” Dennis Ross Says

Amb. Dennis Ross at Har Zion Temple

Amb. Dennis Ross at Har Zion Temple

Former Ambassador Dennis Ross says he does not know if the final result of the negotiations with Iran was the best deal possible, but he believes it will go forward. At the same time, Ross recommends steps he wants from the administration to address the agreement’s shortcomings.

Ross spoke on July 28 about the agreement negotiated by the U.S., Russia, China, the United Kingdom, France and Germany (the P5+1), and now pending review by the Congress. The talk held at Har Zion Congregation in Wynnewood, PA, and sponsored by the Jewish Federation of Greater Philadelphia was also simulcast downtown and webcast over the internet. The video is still available online. (Skip ahead 100 minutes to avoid the recording taken while the room was being set up.)

There is no easy answer to the question what to do with the Iran agreement, according to Ross. If the U.S. refuses to approve the agreement, it is likely that international sanctions against Iran will collapse anyway, and we will have no bargaining power sufficient to achieve any better deal. Thus Ross concludes that the agreement, despite its “vulnerabilities,” needs to be considered.

Good News

Ross laid out the favorable elements of the agreement: For 15 years Iran will not have a nuclear weapon. The amount of fissionable material allowed under the agreement, 300 k.g., is inadequate to manufacture even one bomb. By comparison, Iran has approximately 10,000 k.g. of fissionable material in its stockpile today.

Moreover, the supply chain for the development of fissionable material will be monitored for 25 years. Ross explained the two paths to secure fissionable material:

  • enrichment of uranium through cascades of centrifuges, or
  • development of plutonium in a heavy water reactor.

Either process requires extensive equipment and operations. Based on the successful experience of the International Atomic Energy Agency (IAEA) in identifying past Iranian nuclear development, Ross is optimistic as to the effectiveness of the inspection regime under the new agreement.

Other positive elements of the Agreement were pointed out:

  • In addition to disposing of most of its fissionable material, Iran must remove and destroy the core from its heavy water plutonium reactor.
  • Its modern centrifuges must be removed for 10 years.
  • The inspection rights of the U.S. under the agreement are stricter than any international program ever instituted, other than the program we operated in Iraq after we took over that country.
Courtesy of Cartoon Kronicles  @

Courtesy of Cartoon Kronicles @

Bad News

Ross also provided his opinion of the “bad news”: Iran does not have to entirely dismantle its nuclear infrastructure and can produce highly enriched uranium, although at a much lower pace than at present. Iran will be free after 15 years to move into weapons-grade uranium development as rapidly as it wishes.

Sanctions relief for Iran will arrive as soon as it has completed dismantling facilities and reducing its stockpile. This might occur in as little as six months although Ross believes it is more likely to take a year. Although sanctions may snap back if Iran violates its agreement in whole or in part, if that occurs there is language indicating that Iran is not obligated to obey the limits on its nuclear program.

Ross accepts the probability that sanction relief will permit Iran to raise the levels of financial support it presently provides to Hamas and other terrorist activities. But he reiterates the prospect that sanctions will disappear, whether Congress approves the agreement or not.

Ross suggests that the U.S. add teeth to the agreement by announcing that it will resume the use of sanctions if there is any cheating by Iran. He urges that we develop specific further agreements with our European allies as to when and how their sanctions would be automatically reimposed in case of a breach, especially in the likely case of minor breaches.

After year 15, Iran would be a nuclear threshold state and could acquire a bomb quickly enough that sanctions would not be a sufficient deterrent. Accordingly, Ross recommends that we immediately clarify that even after 15 years we would not tolerate the development of nuclear weapons by Iran and that we would apply force if we saw that happening. Of course, even if we say we will do this, Iran might not believe us. In that case, to ensure that Iran is deterred from weaponizing their nuclear material, Ross recommends that we arm Israel with the GBU-57A/B Massive Ordnance Penetrator along with the B-52 bombers necessary to carry them. This 30,000-pound “bunker buster” bomb is really a “mountain buster bomb” and no one doubts that Israel would be willing to use these weapons if need be.

Audience members asked about the strain in Israel’s relations with the U.S. Noting that fully 70% of Israelis are unhappy with the agreement, Ross pointed to the very real threat they face from Iran and its support of Hamas. Although relations between the Netanyahu government and Washington are strained, Ross predicts no permanent impairment, noting our shared values and the democratic qualities of the State of Israel that are unique in the Middle East.

When questioner asked whether Israel remains free to attack Iran despite the agreement, Ross noted that entering the agreement implies that the U.S. will support, not sabotage the negotiated program. But this does not mean the U.S. is required to prevent action by Israel that is not a signatory to the P5+1 agreement with Iran.

Overall, Ross emphasizes the favorable aspects of the terms reached with Iran and concludes that the negotiated agreement, like the title of his book on the U.S.-Israel relationship, is “doomed to succeed.”

Scary Op/Ed Seeks to Roil Orthodox Waters

maxresdefault[1]The Supreme Court decision granting equal marriage rights to gays is bringing fear mongers out of the closet. Nathan Lewin’s op/ed My Rabbi Needs Legal Aid in The Jewish Exponent strives to instill in the Orthodox community a wholly unnecessary fear of gay rights. The article argues that an Orthodox rabbi may be forced to officiate at a gay wedding, contrary to the view of marriage expressed in Genesis 2:24, “A man shall leave his father and mother and cling to his woman and they shall become one flesh.”

The Supreme Court is, of course, precluded by the First Amendment from adopting the Bible as its law. Separation of church and state requires that it find other bases for decisions.

When two important Constitutional rights collide — say my right of equal protection of the laws and your freedom of religious practice — courts need to decide which right prevails. Contrary to the Nathan Lewin’s worries, the trend today is full tilt in favor of religion.
[Read more…]

The Greek Crisis: Who Is to Blame?

Greek_debt_and_EU_average_since_1977A grim future faces the Greeks, including the Jewish community that has lived there since ancient times: Already suffering with at least 25% unemployment, the bailout offered them today puts them to a choice between greater austerity within the euro zone or even greater austerity if they go it alone.

Greece has done the unthinkable, missing a payment on its sovereign debt and facing further missed payments in the near future. Its banks are in lockdown and internal commerce is near a standstill for lack of cash. But less clear is the question, who or what is to blame? Is Greece the victim of its own wastrel ways, or the selfishness of its wealthier euro partners, or an inherent flaw in the euro itself?

Before Greeks voted against the bailout offer from other nations, Greece’s then Foreign Minister Varoufakis accused the euro-zone nations of economic aggression. He said Greece’s creditors wanted to “instill fear” and blamed them for the government having to close the banks:

What they’re doing with Greece has a name — terrorism. What Brussels and the troika want today is for the yes (vote) to win so they could humiliate the Greeks.

The Greeks voted no, as their government urged, decisively rejecting the bailout offer with its requirement of additional austerity. Varoufakis immediately resigned his office to make room for a new finance minister, presumably to take a harder line in renewed bailout negotiations.

On the opposite side, the widely read German newspaper Das Bild headlined the vote “Nein. No more bailouts for the greedy Greeks.”

With more composure, the Chicago Tribune trumpeted, “Greeks vote no, now they must go,” a reference to “Grexit,” the possible departure of Greece from the euro zone nations and reestablishment of the drachma, its own currency.

Europe is clearly divided on this issue, with Germany leading the hard-liners.

The Greeks have received two supposed bailouts from euro zone nations in five years. The funds came primarily from Germany and France, the largest economies running on the euro, and from the International Monetary Fund, which we in the U.S. invented and support heavily. But critics point out that the amounts were sufficient mainly to make payments on the Greek debt, leaving little or nothing to invest in improvements to the Greek economy.

The austerity rejected in the Greek vote included provisions we in the U.S. would consider minimally necessary to run a nation: Unpaid taxes are 89% of Greek tax receipts, versus less than 3% in Germany. Greeks frequently retire at age 50, not 65, or 67 or later, as in the U.S. And since becoming a member of the 19-nation euro zone, Greece has been on a borrowing binge. The bailout included requirements that Greece reform its tax system and lower its pension costs, and calling on it to work down its debt.

Of course, for a government the availability of credit is like candy to a baby. But the euro nations have agreed to limit their borrowing. Greece owes more than 175% of its gross national product (GNP), and its debt service is less than 3% of its GNP, because interest rates are held so low within the euro zone. (A similar argument could be made for the U.S.: The national bank, the Fed, holds down the cost of the national debt by keeping interest rates down.)

The German finance minister, Wolfgang Schauble, preached the economic gospel:

A currency union in which one partner says, ‘I don’t care, I won’t do anything and I won’t stick to anything which has been agreed,’ cannot work… Trust and dependability are a basic condition when it comes to institutions.

Since the current government in Athens took power on Jan. 25, things have worsened “by the day and by the hour,” Schauble said.

The Washington Post has a different opinion:

As the culmination of Europe’s 60-year project toward greater and greater integration, the euro was a political masterstroke. It was also an economic albatross. And it’s one that wasn’t hard to see coming. Plenty of economists, including Nobel Prize winner Milton Friedman, warned that it wouldn’t work for countries with different economic needs to share a single monetary policy but not a fiscal policy.

At any given time, money would be either be too tight or too loose for some members, and there wouldn’t be anything — like unemployment insurance — to balance it out. The euro, in other words, is a paper monument to peace and prosperity that has made the latter impossible for some countries.

A Jewish Reflection on Liberal Justice(s)

The Supreme Court has surprised us by rendering two decidedly “liberal” decisions in a single week. The more significant ruling was the decision that states cannot exclude gay couples from entering marriages. This decision rests primarily on a broad reading of the 14th Amendment to the Constitution, granting due process and equal protection to all citizens under state law.  It expands on broad readings of the `14th Amendment in pivotal past cases granting privacy rights, rulings that lie at the center of political wedge issues today, including the debate over the right to medical abortion.

The other important ruling holds that the Affordable Care Act authorizes subsidies to those served by a federal insurance exchange. The Act states that the federal government shall subsidize health insurance contracts written under state insurance exchange programs, but says nothing of subsidies for the federal programs established in states that choose not to sponsor state exchanges. This decision rests primarily on Justice Roberts’ view of the “statutory intent” of Congress expressed in the Act, notwithstanding the lack of actual words in the law authorizing the subsidies being granted by the government.

Are we to envision a change in the judicial leanings of the Court? Has the era of 5-4 decisions with Justice Kennedy the swing vote come to an end? Chief Justice Roberts – until now a seemingly bedrock conservative – signed the liberal ruling in the Affordable Care Act case, probably bringing to a close years of work its opponents have invested trying to destroy that law.

Evidence that the Chief Justice has changed philosophically might be found in the blistering language his previous partners in conservatism – Justices Scalia, Alito and Thomas – heaped on his ruling in their dissent. Just as a sample:

“The Court … accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. … (Understatement, thy name is an opinion on the Affordable Care Act!) Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” … (Impossible possibility, thy name is an opinion on the Affordable Care Act!) The Court claims that ‘the context and structure of the Act compel [it] to depart from what would otherwise be the most natural reading of the pertinent statutory phrase’ …”

One might suppose that in a learned judicial tribunal, if members publicly throw the word “shame” at the chief, they do not expect to find common ground with him any time soon!

Yet it is too soon to read such a broad epiphany into the rulings of the Chief Justice. Just three days before the Affordable Care Act case, he rendered an opinion for the Court striking down a Department of Agriculture program under a 1937 New Deal law, regulating the market in raisins to prevent ruinous competition. Here Roberts was joined by his usual partners Alito, Scalia, and Thomas with Justice Kennedy as the swing vote forming a majority. And a day later, Roberts joined the traditional conservative wing, Alito, Scalia and Thomas, in dissent against the decision opening up marriage to gays.

As Jews we can rejoice in the outcomes of the two cases, even if we remain stoic as to any change in the overall direction of the Court. We can rejoice for innumerable gay couples wanting to enter matrimony and for the millions who cannot afford health insurance at market rates. Even more, we can also rejoice for the broad reading of the 14th Amendment to the Constitution in the gay marriage case.

For its first hundred years – as recently as 1970 – the 14th Amendment was considered a response to racism, not to every deprivation of rights. In a voting rights case in 1970 Justice Black wrote:

“Above all else, the framers of the Civil War Amendments intended to deny to the States the power to discriminate against persons on account of their race. …. While this Court has recognized that the Equal Protection Clause of the Fourteenth Amendment in some instances protects against discriminations other than those on account of race … it cannot be successfully argued that the Fourteenth Amendment was intended to strip the States of their power, carefully preserved in the original Constitution, to govern themselves. The Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional denial of equal protection.”

Gay people are not a racial group.  For the Court to establish a new protected personal right, the right of gay people to marry the person of one’s choice,  is therefore very important.  The application of equal protections under the 14th Amendment beyond racial lines is by no means a “first.”  Nonetheless we as Jews, a minority based on ethnicity and religion not race, should be very pleased with this extension of equal protection of the laws to expand liberty and curb harmful, needless discrimination.