Women’s-only Concerts and Sex Discrimintaion
Next Sunday evening the Logan Hall in London will host a concert by girls and women (including my daughter Shira) for girls and women. No men will be admitted, in order to comply with the halachah which prohibits men from listening to women singing (and therefore prohibits women from singing to men).
This concert may or may not be lawful as a matter of the law of England and Wales. Section 29(2)(e) of the Sex Discrimination Act 1975 (taken with sections 2 and 4(3)) makes it unlawful to refuse to provide to men facilities for entertainment that are being provided to women. A possible saving for the legality of the concert is the exception in section 35(1)(b): but the application of that exception depends on what is meant by “the place is (permanently or for the time being) occupied or used for the purposes of an organised religion”. The meaning of that phrase is debatable (I did not write it – but I have had to consider it in drafting the Equality Bill that is presently before Parliament). And there are other exceptions which may, or may not, apply.
So much for the narrow point of discrimination law in relation to next week’s concert. In practice it is of no importance: in the circumstances it is inconceivable that anyone would wish to bring a challenge under the 1975 Act to the staging of this concert for an all-female audience.
There is, however, an underlying question of greater potential importance. Considerable attention has been given to the strengthening of anti-discrimination law as an additional protection for religion, both in Part 2 of the Equality Bill mentioned above (and in the proposed new law about the incitement of religious hatred). But possibly of greater significance for religious communities is the extent to which other strengthenings of anti-discrimination law could conflict with religious practice and belief.
Sex-discrimination is relevant here, and apart from single-sex concerts it is not difficult to think of instances of segregation in the Jewish religious community that are arguably already unlawful as a matter of secular law, although for the present (but who knows for how long) it is unlikely that anyone would seek to enforce the law in these respects.
But other forms of discrimination may be even more problematic. Newly strengthened protection against discrimination on grounds of sexual orientation has the potential to be a particular problem. In the employment context, for example, I have always believed that it would be unnecessary and improper for a Jewish school to refuse to employ, say, a music teacher merely because there was reason to believe that he might be homosexual. But I have always believed equally strongly that it would be absolutely necessary to refuse to employ a teacher who thought it right actively to publicise in school, whether by wearing a badge or in any other way, the fact that he indulged in homosexual practices (in the same way that it would be absolutely necessary to refuse to employ a teacher who was openly indulging in an adulterous relationship). Homosexual practice (as distinct from a feeling or affiliation) and adultery are two straightforward prohibitions of the Torah; and to suggest to our school-children that these prohibitions are to be tolerated to the extent of not rendering a person unfit to be a teacher would be incompatible with the fundamental purpose of a Jewish school.
It needs to be recognised, however, that a refusal of employment in these circumstances might already be contrary to civil law; and this may be just one of an increasing range of potential sources of tension between traditional Jewish belief and practice and the modern secular British ethos.
The courts have already had occasion to observe that when the dictates of religious or other tradition conflict with the fundamental principles of freedom, tolerance and self-determination on which secular British society is based, it is the latter that must prevail. See, for example, the observations of Mr Justice Singer in Re KR (a child) (abduction: forcible removal by parents) [1999] 4 All ER 954. And there is much still to be explored about the possibility of fundamental incompatibility between the European Convention on Human Rights’ protection for freedom of religion and its other protections.
So we should be aware that the general religious tolerance in Britain – which represents much of what attracted many of our ancestors to this country and for which we are all deeply grateful – does not mean that our religious values may not sometimes create direct conflict with the secular law and values on which that tolerance is based.
Speed camera detectors
- On a previous occasion I outlined the Torah objections to high-prize raffles being used by charities. The Side-by-Side charity, an enormously worthy charity that works with children who have special needs, runs an annual multi-option raffle known as a Chinese Auction. Looking at this year’s list of prizes I found something that horrified me even more than the basic concept of exploiting human greed to raise money for charity.
- Raffle 13 is for a “GPS Snooper Safety Alert System”. The caption to the prize is “Don’t get caught by that speed camera – don’t be tricked, be one step ahead”. The detector is advertised as providing “advance warning of police speed traps, accident blackspots, speed cameras, schools, hazardous and dangerous situations on the road”.
- There is only one reason for warning people that they are approaching speed traps or cameras: to enable them to speed without being caught.
- A number of aspects of Torah law are engaged by this device. First, it is against English law to aid and abet the commission of an offence. Facilitating speeding is aiding the commission of an offence and is therefore unlawful. Supplying the detector is part of the facilitation, and is also unlawful. Torah law requires us to abide by the law of our host community – the dina d’malchuto – and the provision of this prize is therefore contrary to English law and halachah.
- Secondly, speeding itself is dangerous, and is therefore contrary to the Torah requirement to protect ones own health.
- Thirdly, speeding poses a known and statistically significant threat to the lives of others: therefore if a person speeds and kills or injures others he will be culpable in halochoh both in the civil sense as a mazik (tortfeasor) and as having neglected the injunction to care for others as for oneself.
- Fourthly, the Jewish equivalent of part of the prohibition of aiding and abetting an offence is the prohibition against putting a stumbling block before the blind: by providing this detector one supports and encourages those who are too stupid or wicked to see the importance of not driving dangerously.
- How appalling that a charity dedicated to the wonderful work of supporting children with physical and mental disabilities should have, in a moment’s uncharacteristic thoughtlessness, caused itself to assist one of the crimes that is most responsible for causing death and injury to children and adults in England today.
Innocent or mostly innocent?
- In a recent criminal trial in America attracting considerable media interest, the defendant was acquitted; but his acquittal was accompanied by some public speculation that he may have been guilty of offences despite the fact that the prosecution had failed to prove its case in respect of the charges preferred.
- The Jewish approach to a situation like this is clear.
- The secular rule against double jeopardy, a person being tried more than once for the same crime, is found, but with variations, in Jewish law. In particular, while we will always reopen a criminal matter to turn a guilty verdict into an acquittal, we will not reopen an acquittal.
- Once a person’s acquittal is recorded, he must be allowed to function, in the same way as any other person, without aspersions being cast against him extra-judicially and in a manner which carries neither accountability or responsibility. So a former juror, or any other person, who accuses an acquitted defendant of wrong-doing is exposed to the same potential liability in Jewish law for defamation, and has to abide by the same laws of permitted speech, as apply in relation to anyone else.
- However, it can of course in theory happen that a defendant is acquitted for technical reasons, while the court is satisfied beyond doubt that he was guilty of a crime. In secular law, for example, there can be technical reasons for the inadmissibility of evidence whose veracity nobody doubts. And in Jewish law there may, for example, be a family relationship between the only two available witnesses which prevents the evidence of both being admitted; or there may have been a deficiency in the terms in which the requisite warning was administered.
- In such a case Jewish law allows the court to impose whatever measures – including imprisonment – it considers necessary for the protection of society. Anyone who believes that the verdict may leave unanswered questions of public safety is therefore able to apply to the courts for relief: but not to indulge in private extra-judicial accusations.
- In this way the Torah gives unlimited powers to the judicial institutions to preserve the rule of law and to protect the public, while at the same time ensuring that individuals have their liberty and reputation protected from interference otherwise than in accordance with due judicial process.
Kosher casinos and the Chinese auction
1. The Government’s recently introduced Gambling Bill has attracted a certain amount of controversy, principally because of the proposals to relax the restrictions on the number and size of casinos.
2. The Government’s policy in relation to gambling is apparent from the fact that the Bill obliges the new Gambling Commission “to permit gambling, in so far as the Commission thinks it reasonably consistent with pursuit of the objectives of-
(a) preventing gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime,
(b) ensuring that gambling is conducted in a fair and open way, and
(c) protecting children and other vulnerable persons from being harmed or exploited by gambling.” (clauses 1 and 21).
3. One might be excused for thinking that Jewish sources shared the perception that gambling is unobjectionable in itself although requiring to be carried on in such a way as to avoid a number of inherent dangers.
4. Certainly, the charitable institutions of the Jewish community increasingly take every opportunity to exploit the allure of gambling, and the rabbis do not appear to protest (or at any rate have not so far acted in such a way as to prevent the trend). Gone are the days of the obviously harmless 10-pence a ticket lottery, with prizes that were so unappealing that they were clearly not designed to act as a serious incentive to parting with money. Now glossy brochures advertising the latest charity’s “Chinese Auction” slip through the letter-box every few weeks – and, whether or not the Chinese had anything to do with it, these auctions amount simply to agglomerations of individual lotteries, in which the tickets cost anything from £10 to £100, and the prizes are said to be worth hundreds or thousands. Normally there is also a “split-the-pot” game, which is a straight lottery with an unrestricted cash prize determined only by the number of people wishing to participate. And apart from these “auctions”, the orthodox Jewish press is constantly advertising simple lotteries with enormous prizes – cars, flats, or on one particularly tasteless occasion a Sefer Torah – and correspondingly high costs of tickets.
5. It is certainly true that there is no halachic prohibition against gambling. But it is equally true that Jewish thought disapproves of gambling so highly as to equate it with a form of theft, on the grounds that each party to a gambling transaction enters into it only on the basis of his belief that he will win. If a person knew for certain that he would not win, he would not bet. Unlike in a genuine commercial transaction, therefore, he does not really intend the other party to acquire his money, but hopes that he will retain his money and acquire someone else’s.
6. On this analysis, not only is gambling at least bordering on the dishonest, but neither is it an attractive or useful pursuit, furthering the welfare of the community. On both these grounds, habitual gamblers are included in the list of wrong-doers disqualified for giving evidence in a beis din.
7. All this makes one wonder why Jewish charities have anything to do with gambling. In former days the ready answer was “it isn’t really gambling – people are happy to give anyway, and this is just a bit of fun”. That was probably mostly or even entirely true of the ten-pence lottery tickets. But it is clearly not true of the high-stake, high-prize lotteries described above. As to these, the prizes are being used as real incentives to encourage people to part with money that they would otherwise either keep themselves or, if using ma’aser money, give to other charities. In the former case, there is a real question of “avak gezel” (near-theft) from the gambler (and therefore a problem of mitzvo habo b’aveiro), while in the latter case there must be a similar issue in relation to the advantage gained over other charities.
8. One wonders why the rabbis do not intervene. Perhaps they do, or will. But as is so often the case there is no need for the Jewish public to wait for a clear prohibition to be applied or for disastrous social consequences to result in a rabbinic decree.
9. We should give our own message to charities. While you offer us the opportunity to do a good deed with money that Hashem has given us, we value you as partners in our spiritual growth. But when you seek to mix our motives, and to acquire our money not based on a pure motive of enhancing society but on a sordid mixture containing an element of greed, we will give our money elsewhere.
The end of the world may – or may not – be nigh
1. A common objective of environmental campaigns is sustainability. That is to say, a test frequently applied in determining the propriety of a use of natural resources is whether it is sustainable itself (as in the case of forestation and irrigation) or whether it threatens the sustainability of all or part of the ecological system (as in the case of the emission of greenhouse gases or the hunting of a species). However, this assumes either that the world ought to be allowed to last forever or, at least, that it is improper for us to do anything that threatens to shorten its likely span of existence.2. Jewish thinking has traditionally neither expected nor desired this world to last forever.
3. Midrashic tradition posits this world as the seventh in a series (based on the number of words in the first verse of the Bible), each of the first six of which was destroyed (based on the rabbinic understanding of the word “sohu” as not meaning “null”, as sometimes translated, but as referring to desolate destruction) (incidentally providing one of the many possible rabbinic explanations of dinosaur fossils).
4. Each world, according to this tradition, is a time-limited experiment created by God to produce some kind of spiritual force, of the nature of which we can comprehend only a very shadowy picture. In the case of this world, the rabbinic construction of the behaviour of Adam (“Adam sinned for the sake of Heaven”) suggests the creation of a world in which man descended from an angelic state, in which he obeys God as an automaton without choice, to a state of tension between a selfish animalism and an altruistic holiness. When human altruism finally triumphs over bestial selfishness through an exertion of free will, the product is a kiddush hashem of unequalled proportions, justifying the creation of the world and rendering its continued existence, at any rate in this form, unnecessary.
5. Hence the difference between the Messianic Era and the World to Come. The former is still “business as usual” so far as nature is concerned (at least according to Maimonides – others differ to a greater or lesser extent) while the latter is the end of this world as we know it. This is why the description “the world to come” is used to describe the state attained by those who die now, as well as the state attained by everyone as a culmination of the perfection of the natural order known as the Messianic Era.
6. For the Jew, therefore, the continuation of this world is not, in itself, an aim at all. For me personally, I aim at the attainment of a state of wholly spiritual existence after death known as my personal world to come. For the world, I aim to participate in producing an environment which proclaims the existence and kingship of Hashem. With this in mind, the rabbis have often predicted different periods for the life of this world. A number are discussed in Gemara Sanhedrin 97. One that focuses our minds is that of 6,000 years, which on the basis of our traditional numbering would give the world a little over two centuries to go.
7. Nor does that necessarily seem unreasonable to the modern mind. The world seems tired. Its resources, whatever environmental decisions are taken, will become more than a little stretched in the next couple of hundred years even if the human family increases at a slower rate than at present. And, of course, increasingly sophisticated techniques of astronomical observation have made it possible in recent years for scientists to observe the number of near misses that the world has had in the matter of meteoric collisions and to speculate how long it will be before we sustain a direct hit.
8. Although much of Jewish law tells us to respect the world and its resources and to use them with care, the prospect of using them solely in order to achieve perpetual sustainability is not one which commends itself. For one thing, we have always believed in the precariousness of the world’s existence, and the constant reliance on Hashem’s chessed in keeping us alive, which scientists are now beginning to conclude for themselves. For another, it has always seemed to us to be more important to ensure that we arrive at the next world in a fit spiritual state than that we prolong this world, or our miniscule share in it, to a particular length.
The Sceptic Blog 