'The Defendant Is a Pure Heretic': Notes from an Infidel
Issue #51, October 2000
This past July, Israel's most influential mystic, Rabbi Yitzhak Kedouri, said he had a dream that Moshe Katsav was best fitted for Israel's presidency. The rabbi is about 104 years old and seems to spend most of his time dreaming. It was a most convenient last-minute dream.
The rabbi's aides went to work contacting ultra-orthodox Knesset members and, with their solid parliamentary voting bloc, a day later elected Katsav as the new President from the ranks of the Land of Israel faithful. Shimon Peres, a man who built his political career on unending losses, held up his hands helplessly watching his much-anticipated victory disappear. Peres was an idiot child of European rationalism swept away by medievalists with cell phones.
This style of thought pervades throughout Israel's body politic today. Cynical manipulation of religion has become a hallmark of contemporary Israeli political life. It both receives and has given authorization to broader mystifications of territory and power. Simple civil exclusions and the daily tyrannies of occupation receive putative divine sanction.
Theologized hypocrisy has emerged as the public standard: my desires have divine protection, your desires are demonic. Claims on exclusive entitlements based on religious belief multiply, and given the inseparability of the personal from the political, exclusivist claims mire civil discourse. Religious mysticism and civil abuse of religion rule, not the secular logic of equality. The Enlightenment lives a hollowed-out existence, visible in personal and social externalities but absent internally.
Where have you wandered, to what lands?
Tell me about the people and cities you saw,
Which ones are cruel and without right and wrong ...
(Odyssey 8, Lombardo translation)
My encounter with state religion has involved two heresy trials in front of rabbinical courts in Israel, threats to my freedom, and five years' exile from my children and home. Although my family and friends know the story very well, legal discretion has restrained me from writing about these events. The case is now under appeal before Israel's Rabbinical Supreme Court. The whole story is far too long and I will tell only the portion that relates to the heresy trials.
In 1982 I married a woman who became a very successful actress. We had two children, and we lived mostly in Israel. In August 1995, she convinced me to send herself and the children back to Jerusalem while I did doctoral work in the United States. In early November, while I was doing research in Massachusetts archives, Patricia telephoned to say that she was filing for divorce.
A legal barrier rapidly arose against re-entering Israel. The personal consequences of re-entering the country would have been catastrophic: no roof, no job, no income, no doctorate, cut off from aging family, and no future. Many years would have passed before I would have been permitted to leave. I have only been permitted to visit the country once, two years ago, when a temporary protective order was negotiated to allow me to attend my son's bar mitzvah, an arrangement enabled by his insistence. Three courts, two religious and one civil, had to approve an agreement enabling safe passage.
Sometimes the uninformed wonder how certain Palestinian intellectuals in the United States, like Simon Shaheen and Fawzi el-Asmar, can claim to be in exile when they have passports, can travel, and may re-enter and exit Israel freely. Exile does not lie in border-crossings alone. As my own exile began, I was to learn with great pain how the certain prospect of oppressive conditions could shape an exile just as surely as being tossed out physically. Civil impositions against any one group translate into impositions against all, as the negative consequences of over thirty years of occupation on Israeli society so graphically illustrate.
Part of the impossible barrier is forced acceptance of the jurisdiction of Israel's rabbinate. If a citizen enters the country, the rabbinate can issue a travel ban, forbidding travel until the issue of a get (Jewish divorce) is resolved. If a citizen fails to appear in response to a rabbinical court order, then the court can issue a bench warrant, send police to arrest them, and compel appearance. There would be no question that I would have to refuse such an order as an offense to conscience. If a citizen refuses to acknowledge the rabbinical court's authority or obey its orders, then the court can ultimately impose lahatz (literally, 'pressure') in order to compel them to agree to its orders and grant a religious divorce.
The institution of lahatz, which occurs in possibly 50-100 divorce cases annually, is a judicial device that allows a rabbinical court to send a recalcitrant spouse to prison for an indefinite period, and return them to court monthly to ask whether they are ready to comply with the proceedings. It's a very effective device: most prisoners comply within a month or two. The holdout record was a Yemenite man who spent about a quarter-century in prison, where he eventually died, rather than comply with a rabbinical court order to divorce his wife.
Because Israel is the only Jewish state, it has the only rabbinical courts in the world with powers of imprisonment. A recently-enacted Sanctions Law, formulated in collaboration with the Chief Rabbinate, expanded those powers considerably. Rabbinical courts throughout the rest of the world function without such powers of coercion. To compare, when I informed my army unit in a letter written some years ago that I would refuse any orders to perform occupation duties, I knew that the maximum risk was relatively cheap: 18 days in a military stockade. The cost of ideological rejection of rabbinical court orders, unlike army orders, is personal destruction.
How did such a system emerge? To accommodate the secular-religious status quo that emerged in Israel following 1948 and independence, the early socialist-led government turned over personal status jurisdiction for Jewish citizens to a system of state rabbinical courts. Together with this, instead of being dissolved, the British colonial institutions of the Rabbinate and Ministry of Religious Affairs were established in the new state. The major colonial state institutions that remained after the British departed were the Emergency Regulations to govern Arabs and the official religious bodies to govern domestic life. Given that both kinds of institutions operated by nominally legal but illegitimate coercions, there was not much effective difference.
The religious courts system was part of this historic status quo compromise intended to purchase social peace, but which instead led to an entrenched national-religious bureaucracy. The civil courts can become involved in issues of child and spousal support and property division, but have no jurisdiction over marriage or divorce. Jewish religious parties have consistently pressed for legislation granting the rabbinical courts greater power vis-à-vis civil courts, and they have been successful.
Moslem, Druze, and Christian citizens rely on their own religious courts in personal status matters. In reality, however, these other religious courts have negligible budgets and public presence, despite having responsibility for a fifth of the public.
In my case, the division between religious and civil courts has led to enormous energy running back and forth between courts, producing a legal genealogy that gives fits to American lawyers trying to understand it. Even worse, the nominally separate but practically intertwined nature of this dual court system enables attorneys to work each side of the street to best advantage. Knowing of my rejection of religious courts, for instance, opposing attorneys were able to use that practical linkage to devastating effect against due process in the civil courts. From the same constellation of cases that have arisen from this single divorce, another civil case over alleged abandonment of joint tenancy property was decided on the basis of the continued existence of a religious marriage.
Civil marriage and divorce do not exist in Israel. In this, the country is little different from its neighbors, where Islamic sharia courts decide such issues. No uniqueness attaches to Israel here, since the secularization of marriage and divorce is a legal movement that originated in Europe and the United States in the nineteenth century, but had not even spread through all European countries (e.g. Greece) until recently. Obtaining civil jurisdiction over marriage and divorce has been one of the most difficult and prolonged international social struggles of the past century. It is far from finished, and in some countries (e.g. Poland) the legal trend is actually retrograde.
State religious control of marriage and divorce, however, is not consonant with equal protection and non-discrimination standards, such as are guaranteed in the United States constitution and in international agreements. State-mandated religious endogamy (inter-group marriage) bars are discriminatory and racist, prohibiting otherwise qualified partners from marriage. The Israeli legal system's refusal to allow or enable marriage between different religio-cultural groups classes it with similar historical legal systems, including miscegenation laws in the United States. Under such a family law system of ethnic-confessional discrimination and intermarriage prohibition, neither my wife's nor my own parents, both Gentile-Jewish couples, could have been married.
In August 2000 the Barak government proposed the once unthinkable, a 'civil revolution' involving the abolition of the Religious Affairs ministry and the creation of second-class civil marriages via a partnership registration law. The proposals are part of preparations for early elections and they have been very popular, particularly among resentful Russian immigrants who have been victimized by religious institutions that treat them as dubious Jews. Secular opinion in Israel favors civil marriage at rates of over 80 percent in opinion polls. Although the dismantling of the Religious Affairs ministry is largely complete already, due to the critical role of the religious parties in destabilizing the current governing coalition, the Barak government's proposal for civil partnership registration and divorce is unlikely to succeed for many years.
Nonetheless, such initiatives must eventually succeed. The rabbinate and state religious courts exist to enforce legal barriers: thus they are discriminatory institutions that must be devolved from state sponsorship and divested of public authority. As religious institutions, rabbinates and rabbinical courts legitimately possess only such authority as voluntary association grants them.
Atheism, Sunny Side Up
My atheism and secularism used to be a passive matter, along the lines of 'live and let live.' But that became a very cramped position in a country where Jewish theo-fascists claim biblical authority to brutalize and dispossess Palestinians, and where Islamicists spew religious xenophobia against the Jewish people's right to live in their homeland. Dreams of hatred are dreamed in the languages of religion. For perfection of their faiths, despicable men talk of clearing mosques off the Temple Mount or of purging Jews from the land with "blood and fire."
An alleged entitlement to violence in God's name infests civil discourse and infiltrates education. When my daughter began reading the Book of Joshua in fourth grade, I sighed inwardly and sat down to discuss its genocidal content. I told her how in 1649 a man named Oliver Cromwell knelt in prayer one night and read this same book, and inspired by his reading the next day ordered the complete massacre of many thousands of people in the market town of Drogheda in Ireland. Then after reading together several chapters concerning the bloodiness of Joshua, my very sane daughter said "Abba, I understand the people killing other people. Humans can be disgusting and ugly. But why did they have to kill all the animals in the Moabite towns too?! The animals didn't do anything!" Suddenly I felt much safer about her reading the Book of Joshua, primer of extreme religious nationalists.
Jewish fundamentalism has become a form of moral corruption against which parents have to guard their children, and interpretive Bible-reading with children is one prophylactic inoculation. A too-common and tragic report today is that a child has become hozer b'tshuva (lit. 'returned to the answer' or newly religious), for it reports the death of a mind that is now engaged in studying pious certitudes, purity and chosenness. A veneer of intellectualism covers the fact that a limited set of books is now privileged, and the world of the mind has become terribly constricted. When recently I heard that a neighbor's intelligent and handsome but directionless son had become devoutly religious in his late twenties, I felt a wave of sadness. Like many, Leib surrendered himself to an obscurantist religious corporatism that promises power through ritual observance and faith. Leib has his mirror image in some equally decent Palestinian youth in Gaza who perceives unscaleable barriers around his life and who embraces the moral absolutes of Hamas.
The function of religion to establish social control and dominion, rather than serve as a vehicle for ethical exploration, constantly becomes visible in Jerusalem. Upstairs in our Kurdish quarter apartment building lives a wannabe charismatic rabbi with a white beard, an ancient idiot who cracked open the Talmud and made a second career after retiring as a postman. We called him 'The Messiah'. Believers visit daily for his magic amulets. The rabbi and his white-clad followers, mostly aggressive ex-cons who got early prison release as religious penitents, work hard to establish themselves as the spiritual government of the neighborhood. It's a completely unacceptable violation of their civil liberties, but it's still funny to see the occasional sight of a line of righteous kollel (adult religious school) students with their hands against one of the neighborhood's stonewalled alleys being frisked by plainclothes cops for drugs.
Despite the questionable activities of some of their own brethren, the idea that neighbors should decide their own religious observance simply does not register in their world system. "We rule this neighborhood!" one of them, his eyes literally rolling in anger and his finger jabbing skywards, screamed at me during a sidewalk confrontation over driving on the Sabbath. Similar attitudes, expressed with greater diplomacy and more authority, characterize the religious political forces that are so visible in Jerusalem.
In Jerusalem I watched ultra-orthodox religion convince women that they should consider it their privilege to work to support their husband's religious studies and conversations with God. I watched religio-political movements and institutions establish themselves on a belief that it is the task of lesser people to do physical labor; that the non-religious and those of other faiths are hamorei ha'-mashiach (donkeys of the Messiah); and such laboring under-classes are necessary to support the privileges of a religious class system. I watched a small economy support more yeshiva students than ever existed in Jewish history, and saw that no secular student enjoys similar support in university. I watched ultra-orthodox politicians send the children of secular parents into the army, but ensure that their own sons (G-d forbid daughters!) will avoid army service and risk. I watched the racism -- most often against Arabs, but not exclusively -- promoted in the name of religious purity. My contempt only grew.
Such contempt was the faith of my forefathers. In Russia, after a horribly neglected childhood as an orphan working in the village fields, some distant relatives offered my grandfather Abraham the opportunity to attend yeshiva in a neighboring town. He was turning thirteen and eligible for service in the Czar's army, which meant prolonged servitude if not just a delayed death sentence. Although the relatives had never done anything for him before, he accepted their offer. On the first day of his formal education, he simply sat and watched. He knew nothing of life in a religious school and his reading skills were weak at best. On his second day, at noon lunch, he asked, "When do we go to work?" The other students laughed uproariously at his ignorance and told him that in a yeshiva his work was reading religious texts. In Abraham's world, reading and study were not work and were certainly not an entitlement to eat. He considered the matter, made sure he got another meal, and left the yeshiva. We still have a mid-1890s picture of half-starved Abraham, an army drummer boy, standing in a Czarist uniform. Throughout his life, eventually lived out as a small shopkeeper in Nebraska and a socialist Bundist, grandfather Abraham referred to rabbis and yeshiva students as "parasites."
Perhaps such a term is harsh, even suspiciously redolent of anti-semitic abuse, but it has a contemporary validity in describing a high-salaried bourgeois class of religious apparatchniks in Israel. Small towns maintain amazing rosters of religious functionaries and incompetent, under-educated party hacks fill the expanding ultra-orthodox school systems as teachers. Secular primary education is disappearing or has been terminated in some smaller towns, having been replaced by ultra-orthodox schools that dig deep into state coffers in order to provide long school days, free hot lunches, and free bus transport that public schools cannot afford to offer. They also offer an arrogant religious ethnocentrism that believes, together with the 19th-20th century rabbinical scholar Chofetz Chaim, that "the world survives only by virtue of the Torah study of Jewish children."
The secular anti-religious backlash, now best represented by Tommy Lapid's small six-seat Shinui Party, has been simple-minded in the tradition of populist anti-clericalism. Under the deeply Eurocentric Lapid, the party refuses to analyze and grapple with the ideological sources of religious control, preferring simply to damn religious power with often-offensive rhetoric. Discrimination against and demonization of orthodox and ultra-orthodox believers has become the anti-semitism of some secular Jews, a development equally as unacceptable as religious coercion. Such thoughtless secular reactions scorn the rich ethical and intellectual potential of religious faith, abandon the bonds of community, and forget that secular and religious Jews share a common history and future.
While religio-political orthodoxy has worked to embed itself as a system of bourgeois class privilege, it has also emerged as part of an assault on class hierarchy in Israeli Jewish society. If the booming high-tech culture of Tel Aviv and its suburbs represents an economic future, then the ultra-orthodox takeover of Jerusalem represents a political future. Demography eventually wins political arguments, and demography is on the side of the religious parties. The state increasingly serves as a vehicle for religion and the prospects for a culture of individual conscience are poor.
Godly bigotry -- as where the country's most powerful and respected rabbi, Rabbi Ovadia Yosef, recently described Holocaust victims as the reincarnated souls of sinners and simultaneously denounced Arabs as "snakes" -- is on the march. A passive secularism permitted the power of such benighted religious figures to grow unchecked and only an antagonistic atheism can confront it.
Progressive politics in general have lost the antagonistic clarity of Bakunin where he wrote in God and the State that "The idea of God implies the abdication of human reason and justice: it is the most decisive abdication of human liberty ... ." To advocate freedom of belief does not equal acceptance of those beliefs, especially where state power advances religious interests and requires public compliance. Absent state neutrality and open choice, the political task at hand becomes the destruction of state religion and its institutions. Israel's state-sponsored rabbinate and rabbinical courts have no right to exist.
John Milton's Treatise of Civil Power in Ecclesiastical Causes (1659), which so powerfully rejects church and state control over any manifestation of religious conscience, still speaks in a fresh voice. I believe in freedom of religion or absence of religion, and can never accept state-mandated participation in religious courts, ceremonies or traditions.
Piety on Parade
1. Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
— Article 18, International Covenant on Political and Civil Rights
Arguably, the avoidance of passive secularism led to my own eventual entanglement and heresy trials. I consistently sought to avoid dealings with the rabbinical authorities because I do not accept or acknowledge their authority or jurisdiction. Patricia and I married in a New York judge's chambers overlooking the Brooklyn Bridge precisely in order to avoid such difficulties.
When Patricia wanted a religious divorce, her attorney Moshe A-- faced the problem of obtaining my consent. Husbands in this position sometimes have used this leverage point to gain concessions unfairly from a wife who wishes a Jewish religious divorce, but this was not the issue here. The other side has consistently refused mediation, the logical solution. So A-- applied pressure in the form of a support action in civil court, as he stated in a later deposition, knowing full well that I would not enter the country without resolution or a protection agreement. The ensuing civil procedural history became a matter of prolonged legal debate on due process, but the religious coercion and its conundrums remained.
When religious court notices first arrived, I read them with interest, put them in a file, and did not respond. Moshe A--, clearly an inventive legalist, arrived at a repugnant solution: demand an annulment based on the husband's heretical beliefs. Thus began the surreal story of one atheist trying another atheist for heresy in front of a state religious court. But without folly, as Erasmus observes, "the world cannot exist for a moment. For is not all that is done among mortals, full of folly; is it not performed by fools and for fools?" Without the demonstrability of foolishness, there would be no hope for human progress. However it is equally true that when the cost of foolishness exceeds its entertainment value, farce is a luxury.
Under other circumstances, an official state designation as 'Heretic' could be a life honor. As one friend asked, "Can you get this as a certificate for framing?" Given that I was fighting for access to my children, however, the only remaining legal asset could not be given away.
Not knowing what was about to happen and not acknowledging the legitimacy of a state religious court, I was not represented by counsel during the first annulment hearing on August 3, 1997. Instead I arranged for an observer, who returned with an extraordinary report. She told about a heresy trial; about testimony from my modestly-dressed wife concerning her piety and my impiety; of my refusal to attend synagogue or keep the Sabbath; of my refusal to observe religious holidays or keep kosher; about decrying my op-ed essays against religious coercion; and of my refusal to recognize constituted religious authority and the rabbinical courts. It was a full religious denunciation of me by Patricia.
The judges inquired especially about my non-participation in our son's bris (religious circumcision) ceremony, as I had preferred the unceremonious medical version. "The judges were very unhappy when your opinions of rabbis were read aloud from letters you sent your wife," the observer told me. In the hour-long proceeding, Moshe A-- again and again described me as an unbeliever married to the pious great-grand-daughter of a rabbi. The latter self-description was pure invention, but the only note of humor for the day. However provoked, the dayanim (religious judges) adjourned without a decision and set a date for a second trial.
What do you do when you are being tried for heresy?
One can only wish for a nonchalance similar to that exhibited by Fawn Brodie who received a summons from a Mormon Church court after publishing No Man Knows My History (1945), a critical biography of Joseph Smith. She remembered "I simply told them, or wrote them a letter telling them, that I would not go because, after all, I was a heretic." After a trial in absentia lasting several minutes, an impromptu court found Brodie guilty of heresy, making her one of the past century's leading Mormon excommunicants together with Sonia Johnson, whose 1979 heresy concerned her support for the Equal Rights Amendment. It seems that manifest oppositionalism draws this particular type of lightning. It is no accident that a 19th-century abolitionist like Philadelphia clergyman Albert Barnes, and Frank Stagg, a progressive Louisiana Baptist theologian who was active in racial justice issues during the 1950s, were both tried for heresy. Both ultimately were acquitted. Political laziness and a zipped-tight mouth don't earn a heresy trial.
The first problem was finding qualified counsel, as counsel with trial experience from the Inquisition is in short supply these days. "There are only four or five people with enough expertise to help you in a case like this," one attorney advised. The selection list was short and each knew the others by first name.
I also learned the first practical lesson of heresy defenses: they cost more than the Ten Plagues of Egypt put together. Dear reader, if you ever face this unlikely choice, plead guilty to those heresy charges, embrace your satanic self, and use the savings to treat yourself to a round-the-world cruise in first class. There will be money left over. I converted my children's college reserve to pay for a heresy defense, one of the darker days of my adult life.
After obtaining the services of a toen rabbani (a rabbinical pleader, a specialist in Jewish religious law), I sent him plunging into battle. At the time I hired him long-distance and sight unseen, I did not know that my proxy was an ultra-orthodox rabbi. Because it was irrelevant, I never inquired into his religious beliefs. Later, a frustrated-sounding Moshe A-- was to make the astonishing argument that proof of my heresy lay in having obtained proxy representation in self-defense, especially a very religious proxy.
I instructed the rabbinical pleader to do whatever necessary to prevent the rabbinical court from declaring me an apikores (heretic) and stop the stripping of my meager legal defenses. Left to his own expertise, he was very successful. During the second heresy trial on October 29, 1997, he adopted a basic 'so what?' and shrug approach to the heresy charges, which repeated the same ground and evidence that had been presented in the first trial. Civil marriage in New York? "Nobody forced her." E-mail evidence concerning opinion of rabbinical courts? "He didn't sign it." Non-appearance at the bris ceremony? "Nu? The boy got circumcised." After further written briefs, the Jerusalem District Rabbinical Court declined to address the heresy issue and denied the annulment motion.
Rush to Heresy
Was I an apikores or not?
The terms apikores and kofer b'ikar (freethinker, apostate) have a long history within Jewish religious tradition. Apikores shares a Greek etymology with 'epicurean' and represents a rabbinical condemnation of ancient Greek ideas when they appeared in the Land of Israel. The classic standard of heresy within Jewish religious tradition appears at Rashi (Rabbi Shlomo Yitzhaki, France, 1040-1105) who explains that a seven-step progressive test applies, leading from failure to study Torah and negligence of religious practice up to renunciation of God. For Maimonides, the primary test for heresy was denial of divine revelation or of divinity entire. Moses Hagiz, a 16th -17th Jerusalem rabbi who was a defender of orthodoxy, added that the term apikores applied to all who refuse obedience to rabbis.
An apikores may not inherit; cannot be buried in a Jewish cemetery; and cannot be mourned. Any Torah scrolls scribed by an apikores must be burned; such desolate souls will not have Temple offerings accepted; and it is traditional to spit on the ground three times upon encountering this abominable creature. None of this was of much concern to me, except possibly the latter for public health reasons. As a writer, I did take exception upon discovering that "The books of minim (sectarians, heretics) are like blank spaces" and may be consigned to the fire. The emergence of heresies has propelled literacy and reading forward throughout modern history. Nations blessed with interesting heresies have healthy publishing industries and much-improved incomes for writers.
The truth of the charge of heresy, I must confess with a smile, is undeniable. One friend, an unregenerate Chippewa heresiarch himself, commented, "They've sure got the right one this time."
I am fully an apikores if such is defined as rejecting divine existence and authority; having secular opinions; not engaging in religious observance; and having no connection with orthodox religious practice or authority. This description fits the great majority of Jews in the world. Not since my great-grandmother died in the '40s has there been any religious sentiment on the Jewish side of the family, not counting one very distant relative, a Zionist who disappeared in the mid-'40s while headed for the Promised Land and who re-emerged decades later as a Lutheran bishop in Canada. Polite consideration of faith is the only rule, as for our beloved and now-deceased Aunt Mary Helen, a devout Catholic who was delighted and comforted to have her Jewish family send memorial mass slips for Uncle Lou from the Holy Sepulchre. Neither secular heresy nor religious faith, after all, makes excuse for impoliteness from any direction. Understood from within such norms of difference and acceptance, public accusations of secular departure from religious orthodoxy constitute an extreme of impoliteness, let alone the rest of the social philosophy baggage.
Religious practice must never be imposed on those who do not share the same religious principles, and I have opposed such coercion for many years through more actions than just patronizing Kranzdorf's non-kosher butcher shop in downtown Jerusalem and my Saturday morning bacon-and-eggs ritual. In a deposition for subsequent proceedings in the United States, when Patricia was questioned "You are aware of the fact that Joseph has publicly spoken out against religious coercion?" she responded "He has, he has written articles. He has published them in newspapers." Once such essays had seemed to her commendable, not the stuff of future heresy charges. As a new standard for culpable civil speech, this denunciation extended Rashi's criteria to include protest against state imposition of religious observance.
Patricia affirmed that she too is an apikores according to classical tests of Rashi and Maimonides. She stated "[Joe] does not believe in God. I do not believe in God either." Nonetheless, she pursued a singular heresy case in court based on charges of atheism. A heresy claim, then, becomes an empty and cynical accusation: he is what I am and we both believe the same, but the court should hold him liable for his belief. When the Albigensian heresy was abroad in medieval France and Italy there was an actual theological difference based on rebellion against or acceptance of the material world. Here, given the two parties' equal acceptance of temporary and material immediacy, this form of postmodern heresy charge might be an improvement: it just anathematizes a competing sameness. Like rival TV detergent commercials, the difference becomes rhetorical strategy rather than material reality.
Although there was never any shame on the part of those who arranged the heresy trials, when a foreign court became involved there was recognition that none of this would look good. In fact, it looked awful, and legal heads in the United States were shaking in disbelief. When it came time to testify about the heresy proceedings, the retrospective backpedaling was furious and more than a bit silly.
In June 2000 depositions regarding the 1997 hearings, both Moshe A-- and Patricia apparently forgot their command of the Hebrew language and were at a loss to remember the words for 'heretic'. When asked, "What is the meaning of apikores? Is it not true that the proper translation of apikores is heretic?" Moshe A-- replied "I am not sure." Previously, A-- had no difficulty remembering or using the term apikores to describe me in oral and written arguments to the Jerusalem District Rabbinical Court. Either A-- was a fool filing briefs using words he did not know -- an improbable possibility -- or disingenuousness once again provided a convenient escape.
When asked about the consequences of being adjudged an apikores, A-- suddenly was able to comprehend the word and reply: "I think that if the rabbinical court comes to a conclusion that a person purposely refrained from getting married in the religious way and chose, in order to avoid the religious marriages, chose an alternative way then I think the chances of arriving at the conclusion that this marriage has no validity are better." In short, nail the man for heresy and the prize is ours. A--'s legal inventiveness remained tactical and he lacked a larger strategic imagination to add persuasive context to these charges.
Surprisingly, Patricia also had Hebrew language difficulties during her subsequent deposition. Twice she denied knowing the word apikores, although she was able to identify it correctly as a Greek loan word. She also denied knowing the near-equivalent term for heretic, kofer b'ikar. She denied entirely that such characterizations were ever made: "Neither Shlomo D-- nor Moshe A-- ever used the word heretic in court, or anywhere else."
Despite the fact that her counsel alleged in her court brief that "the defendant is a pure heretic," Patricia looked around for a guilty party and found one. "It was a term used by Joe Lockard himself," she stated, "I know that the term apikores and heretic was used only by Joe Lockard." Protocols from the religious court record demonstrate, however, that she repeatedly sat in a public courtroom and attempted to obtain a heresy judgment. When asked in deposition whether she gave court testimony and evidence on my religious beliefs, synagogue attendance, or holiday and kashrut observance, Patricia only repeated "I do not recall."
Patricia appeared caught in a web of contradiction and denial. On one hand she stated that she did not volunteer information on her husband's statements regarding the Jewish faith. On the other hand she volunteered that "Joe has often stated, often in written form to me, that he does not recognize the rabbinical courts, nor rabbinical authority and has made very often statements against what he called theocracy in this country." She further testified that she brought e-mail to read to the rabbinical judges to demonstrate my anti-religious opinions. She had become a willing collaborator with that very same theocracy.
At a personal level, reading the depositions I felt great sorrow. A woman who I had loved and the hard-working mother of our children was caught up in a deplorable legal situation. While she exercised excruciatingly poor judgement in agreeing to testify on heresy charges and bears full responsibility, it was not she who invented these accusations. Instead of sitting down for negotiations or third-party mediation, she followed a path that misleadingly promised to lead to her exclusive desires. Patricia and her counsel, confronted with reasonable opposition to their demands in a civil case, employed heresy claims in the religious court to circumvent that resistance.
At a social level, such cynical abuse of the courts emerged from a hollow, cynical system that resulted from religious faith merged with state authority. Public denunciation in order to obtain a declaration of official ostracism -- of a marriage partner, no less -- represents surrender to coercive religious authority, an act that fails any test of integrity. It is collaboration entire. As Milton asked, "How for conscience sake, against conscience?"
My own ethical questions in this predicament were not inconsequential. When my proxy appeared before the rabbinical court, for example, did he tell the truth about his client's beliefs? Although one dayan wrote in the court opinion that my anti-religious opinions were obvious, the rabbinical pleader did not state those opinions outright. He functioned according to norms, sought to mitigate the legal damage caused by my own written words, and told the court what it needed to hear in order to avoid accepting a heresy claim.
To assert that refusal to inform a state religious court about anti-religious opinions is misleading would, first, accept the proposition that a religious court had a right to violate privacy in order to know about, inquire into, or attempt to assert authority over my opinion; and second, agree that a religious court engaged in entertaining heresy charges is entitled to true and correct answers to affirm such allegations. If accepted, these standards would posit a test of accomplished martyrdom as the sole valid test of resistance to jurisdictional authority. A state religious court evaluating nonconformity or dissent deserves whatever answers it receives. Given that direct resistance to religious court authority is itself illegal and non-appearance for a summons can be met with a police-enforced arrest warrant, indirection is a means of effective resistance.
A further relevant question is, by making a proxy appearance, did I grant the religious court authority and jurisdiction? Was there not a contradiction between rejection of the court's competence and entering a defense before that court?
To assert that a proxy's appearance before a state religious court for purposes of legal self-defense constitutes recognition of its authority and jurisdiction is untrue because it ignores coercive duress. The mere fact of appearance, whether in person or by proxy, would in such case be taken as acceptance of religious jurisdiction. This acceptance would be assumed in spite of the fact that the point of argument before the court involved refusal to accept religious jurisdiction. Jurisdiction issues are crucial because state-sponsored rabbinical courts base their jurisdiction on a theory of covenanted obligation on the part of Jewish citizens, as opposed to the counter-assertion that all citizens, irrespective of faith, have self-possession of religious conscience. Before the Enlightenment, individual conscience and religious compliance were state possessions and it was the work of generations to overthrow enforcement of that claim. Israel's rabbinical courts continue to function on an anti-Enlightenment constitutional basis where state authority mandates appearance. They treat citizens, at best, as the contingent possessors of rights and conscience rather than as entire owners.
Religious courts do not own any citizen's obligation: any appearance exceeds obligation. Religious courts may assume only such limited and non-sovereign jurisdiction as the respective parties provide of their own free will. A national religious covenant established on an absence of individual consent not only does not bind, it violates a right of free association while attempting to enforce a coercive and contradictory concept of mandatory religion as nationality. Such a flawed assertion of state religious legal authority ultimately makes social peace impossible between the godless and the god-fearing, or between majority and minorities. As an immediate practical consequence illustrated in this and many others cases, civil-religious cross-flow, or over-governance by religious institutions, contaminates civil institutions and their decisions.
A further argument might be made that a test of harm was not met, given that the state religious court declined to declare me a heretic or annul the marriage. This argument fails to acknowledge that harm to, and violation of, individual conscience occurred. That violation occurred first, in the very process of self-defense against heresy claims; second, in having to make an appearance before a religious court whose existence as a state authority violates non-religious conscience; and third, in being required to spend substantial amounts of money for a proxy defense in a religious court. More important however is that harm which occurs when religious heresy charges are employed to delimit membership in a people and establish a state-religious category of non-recognition and legal non-protection. That is a social harm far more insidious than its individual harm.
At the end of this history and its arguments a simple assertion remains: I will never appear before a rabbinical court or acknowledge its authority as a state institution.
Heresy claims argued and adjudicated with any substantive seriousness before a public tribunal can only represent a violation of free conscience. Religious proofs have no place in any public courtroom. Far better the neutralist philosophy of the New York appeals court in Williams v. Bright (1997) that stated, "American courts have no business endorsing or condemning the truth or falsity of anyone's religious beliefs ... "
Them I would first exhort not thus to terrifie and pose the people with a Greek word: but to teach them better what it is; [heresy] being a most usual and common word ... They should first interpret to them, that heresie, by what it signifies in that language, is no word of evil note; meaning only the choise or following of any opinion good or bad in religion or any other learning ...
(Milton, Civil Power)
Men who fathom the mysteries of divine purpose are nearly inevitably drawn to inflict their visions upon the under-enlightened through coercive state institutions. Beware such repulsive creatures. Beneath their governments, religious dissent or secular irreligiosity translates into heresy and treason. As Milton, a profound Christian himself, realized, 'heresy' is but another name for another opinion.
Jewish culture fortunately has produced far more heresy than it has decried, and Jews take communal pride in the quality of their intellectual heretics. Religious heresy denunciations do not appear often, outside of certain insular ultra-orthodox circles. When such claims have appeared, they tended to be historic and dramatic (e.g. Spinoza or Shabbtai Tzvi). Traditional rabbinical declarations of heretical status often included a ban on association (herem). The effectiveness of heresy claims largely disappeared with modernity: apikores became a label of obloquy from blinkered religious reactionaries, little more. Eliezer Ben-Yehuda and Chaim Nachman Bialik, the lexicographer and national poet of modern Hebrew respectively, were both deemed heretics for using the Holy Tongue to secular purposes.
Compared to the possibilities of history, this was a pitifully small-beans case. Heresy mongering served here to definite secular purposes involving children, money, and property. Together with others of his theocratic class, Yitzhak Lau, current Ashkenazi chief rabbi, declares that only a Torah sage who turns atheist can be deemed an apikores, as only he has sufficient knowledge to understand the consequences of his unbelief (implicitly reserving heresy as an old boys specialty). In fact, though, heresy claims can be and are advanced at the far lower transcendental elevation of religious court maneuvers. At its imaginative and graceful best, heresy should be provocative and capable of good humor: these reject-quality claims retailed through false piety are mundane, and worst of all, long-faced and unentertaining.
Large bodies of opinion in Israel unjustifiably view its society as an isolate within the Middle East. Heresy denunciations are being used with increasing frequency throughout the Middle East to attain domestic or political aims. Most of them are strictly local news, but examples over the last decade include the well-known cases of Farouk Fouda and Naguib Mahfouz in Egypt, Marcel Khalife in Lebanon, as well as lesser-known cases like that of the poet Mussa Hawamdeh in Jordan. In the case of Egyptian secularist Farouk Fouda, heresy claims cost his life and nearly the same for Mahfouz. Such claims predictably aim at an intellectual class with written records for citation.
Heresy claims are a blunt means of attaining or preserving power by attacking religious or secular heterodoxy. In the present case, the heresy claims represented an attempt to seize absolute power in the dissolution of a marriage. There was no grand scale or theology, like the Arian or Monophysite heresies of early Christianity. This was not a song by Khalife or an allegorical novel by Mahfouz. Rather, the daily life and occasional expressions of one individual came under state religious scrutiny.
Heresy claims state that proper moral order and authority have been violated and must be set right. Part of the danger of heresy and blasphemy claims is that they inflate small, often previously ignored expressions into monstrous offenses. In consequence, a speech offense remains unknowable until it is singled out for official condemnation. When made, such charges inform a far wider audience that thoughts and words must be guarded, that freedom to write may have its price. The pursuit of an heresiological examination in front of state judiciary entails, beyond its immediate case effect, the delineation of a secular marginality and pariah status within a religious state. Its inherent specification of orthodoxy posits a model citizen, a 'good subject.' A secular atheist is thus transformed into an extremist deserving of anathema, including the dissolution of family relations, in order to demonize and expel.
A heresy, by definition, is an idea that has not achieved temporal power, and a state-established religious faith has no choice but to judge atheism a failure. The early Church father John Chysostom wrote, " ... when a single heresy has been struck down and falls there will be a rout in which all ... will share." Heresy proceedings concerned with one starkly 'aberrant' individual, whose actions and speech may not differ substantially from many others, inevitably devolve into social significance beyond that individual. Chysostom's aggregation of offenders errs in assuming a common genealogy to Untruth, but he shares with other heresy hunters a belief that establishing one heresy establishes a means to identify and eliminate others. In this, he is not inaccurate. If Israel's state religious courts establish a precedent that a civil marriage may be terminated due to heretical secular belief and rejection of religious authority, then all civil marriage in the country exists under the same burden of legal caution.
For me, this lengthy story has cost five years of life with my children, five years of exile, and five years of lost peace. It is small by comparison to larger political cases, but the shortness of childhood and life loom large to me. The lives of my children have been caught in this heresy conflict and I shall never share the moments of their childhood, comfort their worries, or make them hot soup on a cold day. There is no compensation imaginable.
Joe Lockard, a Bad Subjects editor, recently completed his doctorate in English at University of California, Berkeley. The cases described in this article remain under heavy litigation, with nine lawyers on two continents at last count. Thanks for comments to Sharon Braz, David Lockard, Mike Mosher, Joel Schalit, Megan Shaw Prelinger, Jonathan Sterne, and especially Gerald Vizenor.