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Will observance of Jewish religious principle impede Sen. Joseph Lieberman’s performance of his governmental duties if the Gore-Lieberman ticket wins in November? Lieberman has, in a Kennedy-like public pledge, given his unqualified assurance that his religious practices will not interfere with performance of public duty. Rabbi Barry Freundel, his Georgetown rabbi, has provided Orthodox rabbinic support for that commitment. The publicity given this question may appear unprecedented, but this is not the first time that observant Jews have debated how to balance, in this context, the demands of conscience against the needs of state. Leading authorities on Jewish religious law discussed such a subject intensely when the state of Israel was established and it became obvious that Jews — including some who are meticulously observant — would have to manage a modern government that could not be turned off on Saturdays and Jewish holidays. Then- chief rabbi of Israel, Isaac Herzog, published an opinion in 1953 that authorized Israeli police to make rounds in their cars on the Sabbath, to use the telephone to catch suspects, and to write police reports on such arrests. These activities, he said, fell within the ambit of pikuach nefesh — the saving of human life — that transcends the Sabbath laws. OBSERVANCE AND EXCEPTION Observing the Sabbath is one of the 10 Commandments, and it is the principal mark of distinction in today’s world between a Jew who is religiously observant and one who is not. At great personal cost, Orthodox Jews have often felt compelled to turn down business or job opportunities that require desecration of the Sabbath. Needs of a business — pure commercial gain — cannot, under any circumstance, justify violating prohibitions against labor on the Sabbath. Laws have been enacted in the United States to protect Sabbath-observers against unjustified employment discrimination because of their unavailability for regular work from sundown on Friday to nightfall on Saturday. Under a 1972 amendment (that I personally drafted) to the Civil Rights Act of 1964, a private employer must make a “reasonable accommodation” for the Sabbath observance of an employee. Such accommodation includes changing shifts of other employees and granting unpaid leave to the Sabbath-observer, unless the employer can prove that the accommodation creates an “undue hardship” to the business. The fact that a Sabbath-observer can be vice president of the United States does not mean that an employee in any job whatever can be required to work in violation of his religious convictions. DIFFERENCE IN DUTIES The difference lies in the nature of the duties. Although the Bible prescribes no explicit exception for life-threatening emergencies, rabbinical interpretation more than 2,000 years old has placed the sanctity of human life above many otherwise unequivocal biblical commands. The Talmud says that “saving a life (pikuach nefesh) overrides the Sabbath.” And the rabbis long ago endorsed the general principle that, with the exception of idol-worship, murder, and prohibited sexual relations, “no commandment stands in the way of pikuach nefesh.” All efforts must be made on the Sabbath to rescue someone who is drowning or trapped in a burning building. The same general principle of Jewish law (that preserving life overrides all other duties) also directs that an abortion must be performed if a fetus endangers the mother’s life. The rabbis based this conclusion, which places human life above the Sabbath rules (and other religious commands), on the verse in Leviticus that says, “You shall observe my decrees and my laws, that man shall perform and live by them … .” A Talmudic text explains that the words “live by them” preclude any obligation to die or permit death on account of the biblical commandments. Moses Maimonides, the great 12th century codifier of Jewish law, who also served as royal physician and adviser to the vizier of Egypt, began the second chapter of his restatement of the laws of Sabbath observance with the following general principle: “The Sabbath is suspended in the face of danger to life, as are the obligations of all the commandments.” Maimonides’ specific illustration, which followed this general introductory principle, was: “Therefore, in the case of a sick person in danger, we may tend on the Sabbath to all his needs as directed by a qualified physician in that location.” Nor need there be absolute certainty that life is threatened. Maimonides added, “When there is some doubt as to whether the Sabbath prohibition needs to be violated, or if there is a difference of opinion among the doctors, the Sabbath should be desecrated on the patient’s behalf. Even a doubt regarding a risk to life overrides the Sabbath.” This obligation to violate the Sabbath rules to save a life, added Maimonides, is not one that should be shunted off to individuals who are not observant or not prominent. “When one must perform these acts … they should be done personally by the leaders and Sages of Israel.” Doctors’ Beepers In response to reporters’ questions, Lieberman himself noted that it is common in Orthodox synagogues to see Sabbath-observing doctors responding to calls on their beepers during Sabbath services. And in the most Orthodox neighborhoods of Brooklyn, the emergency ambulances of “Hatzalah” (which, in Hebrew, means “rescue”) race through the streets on Saturdays carrying patients to neighboring hospitals. The drivers and attendants are wearing yarmulkes and beards, and have interrupted their own restful Sabbath because of the command of pikuach nefesh. Chief Rabbi Herzog’s modern approval of Saturday police rounds was broadened by other leading contemporary Israeli rabbinic authorities. In a published gloss on the Chief Rabbi’s decision, Rabbi Shaul Yisraeli, a renowned teacher in Jerusalem and member of the Supreme Rabbinical Court, cited a Talmudic passage that permits one to extinguish a red-hot metal shard found on a public road because “the public may be harmed by it.” Medieval rabbinic commentators such as Nahmanides had suggested that the “public welfare” — avoidance of physical danger or even economic harm to the general public — is a form of pikuach nefesh. Rabbi Yisraeli surmised that many aspects of governmental activity designed to protect the public meet the pikuach nefesh standard. There would, of course, be occasions when Lieberman, as vice president, may have to make personally inconvenient choices because of his religious convictions. Walking, rather than riding, from the Capitol to the reviewing stand on Inauguration Day, Jan. 20, 2001, which falls on the Sabbath, may be one of these. Social events may call for additional courtesy by schedulers and hosts who will have to be sensitive to the honored guest’s religious needs — just as they would graciously accommodate some physical disability or dietary preference. More than half a century ago, Franklin Roosevelt proved that, with the help of those around him and consideration by others, the presidency could be managed from a wheelchair. PAINLESS PRACTICE In my own professional life — which has included appearances before every federal appellate court and the Supreme Court — I have found that accommodation to Sabbath-observance is awesomely feared but painlessly practiced. Every experienced Sabbath-observing litigator has “war stories” of exchanges with judges, court clerks, adversaries, and co-counsel. My favorite at the Supreme Court level was in 1994, when I had two cases ( Board of Education of Kiryas Joel v. Grumet and Beecham v. United States) scheduled for oral argument. The Supreme Court’s March session coincided with Passover. The second day of the holiday — which, by Orthodox religious rule, is a Sabbath-like day of rest just like the first day — was a potential argument date, since it fell on a Monday. I called the Supreme Court clerk’s office to notify it of the conflict and ask that my arguments be spaced over the Court’s March session. I was told that there was “no problem” and that neither of my arguments would be scheduled for the Monday that was my religious holiday. It was then Justice Ruth Bader Ginsburg’s initial term on the Supreme Court, and the fact that she was the Court’s first Jewish justice in 25 years had not gone unnoticed by the media. I should have anticipated what happened next. Within five minutes after my conversation ended, the phone rang. It was the clerk’s office asking whether, in light of what they had just learned about Passover, they should anticipate any difficulty with Justice Ginsburg. I replied that, to my knowledge, she was not Orthodox and probably did not observe the second day of Passover. Less than two years later, after Justice Stephen Breyer joined Justice Ginsburg on the Supreme Court bench, there was a brouhaha in the media over whether the Court would sit on Yom Kippur, which fell on Wednesday, Oct. 4, 1995. Responding to their request, in a demonstration of courtesy and sensitivity, the Court decided to reschedule arguments that had initially been listed for that day. Whatever rabbinic rules Joe Lieberman, as vice president, may choose to follow (after consultation with his spiritual advisers), one hopes that this Supreme Court precedent of civility and respect for conscience will be followed by all. Nathan Lewin is a name partner at Miller, Cassidy, Larroca & Lewin and is a Sabbath-observer. He was an assistant to Solicitors General Archibald Cox and Thurgood Marshall, and Deputy Assistant Attorney General under Ramsey Clark in the Justice Department’s Civil Rights Division.

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