• Rabbi Neil P.G. Hirsch

The Social Contract

Delivered on Yom Kippur 5781, September 28, 2020




In a year in which community has gone virtual, with school and courts online, where the societal norms and democratic values are under stress, and tensions so high, this morning’s Torah portion is all the more important: Atem n’tzavim hayom kul’chem... You stand this day, all of you, before the Eternal your God—your tribal heads, your elders and your officials, all the men of Israel, your children, your wives, even the immigrant within your camp, from woodchopper to water drawer—to enter into the covenant of the Eternal your God…[1]

This is the Bible’s democratic voice. All at Israel, from the laborer to the top leader, from the tribal elder to the stranger who dwells among Israel, everyone counts in today. Hold on to two key words here – kulchem, everyone; and brit, covenant. Everyone is present, and everyone has a stake in the agreement we draw up with God. When it comes to the covenant, the contractual relationship with God, the covenant is fully inclusive. Everyone has access; everyone stands together. Today, God counts you in on this enduring social contract.


I have struggled with the idea of being in a Covenant with God. Covenant is one of the cornerstones of classic Jewish theology, yet the concept does not match my experience with God. Covenant is too lofty, too out-there, and I experience God as right here: God lives in the realm of humanity, in our interactions. I witness God in the ultimate experiences we share: when we are merciful and just to one another, when we are loving, when we are compassionate and empathic, and when we are kind. If a social contract with God is to make sense, it only does so because you and I are also bound by a social contract. God’s covenant is only meaningful alongside the recognition that there are things that we—you and I—owe one another.


We express this accountability to one another and God through the Divine attributes we find in one another. Often at weddings, brides and grooms recite the verse from Hosea: "V’erastich li l’olam, be betrothed to me forever, be betrothed to me b’tzedek u’v’mishpat, in righteousness and justice, u’v’chesed u’v’rachamim, in kindness and mercy... [and in] faithfulness.”[2]


As God’s prophet, Hosea was calling on Israel to cleave to God, as a loving couple binds themself to one another. Being in an enduring relationship happens when we show justice, kindness, and mercy, from which faithfulness flows. Consider the strongest relationships we hold—the friend who would drop anything to be with you in a time of need, the parent who picks up the child after scraping a knee, the workmate who has got your back. Hosea is calling for justice in the world, for kindness among people, for compassion when confronted with conflict. That call is not off in the distance or up in the heavens; the call is for each of us here and now. And when we live responsibly by this social contract, we uphold God’s covenant, too.


Despite what some may imagine, my wife, Rabbi Liz Hirsch, and I do not often talk theology at the kitchen table. However, the other day, Liz and I stumbled into one of those great conversations about belief. We were having lunch the day before Rosh Hashanah. Liz mentioned that a congregant of hers asked her to reflect on where God has shown up in this pandemic. Without missing a beat, she replied that that question was not what she had been asking lately. Rather, she was wondering: What does God want from us right now? Liz’s answer: God wants us to be kind to ourselves and kind to one another.


What was an implicit social contract based on kindness has become explicit since March. We stay physically distant from one another and wear masks because we know that is the best way to protect you and me from COVID-19. For those of us who have had to teach toddlers to wear masks, and to remain a safe distance from friends on the playground, this is driven home clearly: this is how we are kind to one another.


I have had a lot of conversations with my 3.5 year old son this summer about why we have to keep a distance and wear masks. We talk a lot about kindness, and that we are even caring for strangers. For that reason, I have wrestled with anger when I encounter someone at the gas station or grocery store not wearing a mask or keeping their distance, someone who has little regard for our new social contract. The arrangement is simple, so why can we not maintain it?


We have all seen the reports—masks “are the most powerful public health tool we have.”[3] Yet from the White House down to regular folks heading in and out of stores, some individuals hold so fast to their freedom they fail to see that social norms, communal obligations, and the social contract keep our society operating. Even if someone were to live in the woods far from everyone else, he would never be able to absolutely extricate himself from you and me. The covenant endures.


The tension between my liberties and what I owe you is also found in our Jewish lives. We each have the power to say "keeping kosher does not mean anything to me," and we all know that a bolt at lightning is not coming if we eat bacon or a lobster roll. Yet as soon as our more traditional relatives come to town, we make concessions, we refrain from our freedom to eat trief to put the value of Shalom Bayit first.


A while ago, I chaperoned a youth group event at another congregation. When dinner came out, the main course was chicken alfredo. Having some students in my group who kept kosher, I asked our host to point me toward the kosher or vegetarian option. "We don't have any other options," the host said, "We are reform."


“And we are reform, too,” I replied, whereupon I went out and got dinner for the kids who kept kosher.


The meaning was significant. Where our host was mistaken was that everyone at this event was a reform Jew, and some kept kosher. A Judaism of one does not work. If my Judaism is in absolute conflict with your Judaism, then we have no community. We uphold our liberties when we balance them with an embrace of our communal obligations. I only know freedom if you accept that our lives are bound together by a social contract.


No one understood this better than Justice Ruth Bader Ginsburg, of blessed memory. In 2014, Ginsburg issued a now-famous dissent in Burwell v. Hobby Lobby. The crafting supply store claimed that the Affordable Care Act's mandate to provide female employees with no-cost access to contraception violated the Religious Freedom Restoration Act. In other words, the claim stated that the ACA violated the corporation's protected religious rights. In a 5-4 decision, the Supreme Court upheld Hobby Lobby's claim, allowing the company to deny their employees' access to this part of the mandated health care coverage.


Holding the minority opinion, Justice Ginsburg wrote the following, “Persuaded that Congress enacted the [Religious Freedom Restoration Act] to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.”

Justice Ginsburg dissented because of the implications of the judgment. Mindful of the havoc that could be introduced, she dissented. A jurist’s role is not to be an oracle, but to determine legal boundaries. Our health care system embodies a balance between personal liberties and a social contract we hold with one another. If your employer tells you that you cannot access contraception through their plan, because of their religious convictions, sure you can get a job elsewhere. However, it also comes in conflict with your liberties to access the sort of care you deem correct for you. Public health leaders have long asserted that access to contraception reduces unwanted and high-risk pregnancies, lowers maternal and infant morbidity and mortality rates, and reduces the drive for women to seek unsafe abortions. The communal benefits are such that many describe access to contraception “as essential to human rights.”[4] Ginsburg saw the erasure of boundaries in the court’s decision in the Hobby Lobby case as problematic, because it pointed to further complications in the application of the law. Havoc ensues when one’s personal liberties are in conflict with another’s rights. The havoc Ginsburg was mindful of was the lack of clarity this decision presented in the essential debate about individuals’ rights and communal obligations.


The challenges we face as a nation, from COVID-19 to Climate Change, from blatant racism and xenophobia to baseless claims of voter fraud, are stress-testing our democracy. In the short term, I am scared for us. These crises are not far away from our personal lives, they are close to us. They affect us personally; they challenge the social contract we hold with one another. In preparing for the holidays, a friend quipped to me, "Usually I would say that I have a list of apologies for 5780…. but, it feels like 5780 owes us the apology." This year was unrelenting, and an apology would go a long way. Recently, the Boston Globe ran an article titled "Five maps that show just how much the US is dealing with now."[5] They assembled heat maps that showed who across the United States was affected by which crisis. Like a visual Unetanek Tokef, the maps told of who by fire and who by hurricane, who died by COVID-19 and who had only been infected, who by police brutality and who by protest. I have never been a fan of the saying that God does not give us more than we can handle, but in viewing those maps, and knowing that each represents personal trial and heartache by regular Americans, when do we get to cry out "Enough!" 5780 owes us an apology.


With the gates open to us on Yom Kippur morning, we sit aware that here we are, and we cannot un-ring the bell. The only option is to move forward. How do we get to a year that is not like a reverse Diyeinu, where we yell "Enough!" and throw in the towel? How do we travel through these gates today and come into a year filled with blessings despite our challenges?


By remembering what the prophet Hosea had to say: “V’erastich li l’olam, be betrothed to me forever… b’tzedek u’v’mishpat, in righteousness and justice, u’v’chesed u’v’rachamim, in kindness and mercy... [and in] faithfulness."[6] We stand here today, all of us, from the woodchopper and the water-drawer to the priest and the prophet, from the unemployed and the service worker to town select board member and the business owners, from the strangers among us to the most notable—all of us are here today, called into covenant with one another and covenant with God. For a social contract with God to mean anything, we must also embrace a social contract with one another. This is what we owe one another; this is how we must be in the next year: we must be kind and compassionate, righteous, just and merciful, faithful to ourselves and one another, because as we have learned through this pandemic, our lives depend upon it.


May we each be sealed together in the book of life in this year to come.

[1] Deuteronomy 29:11. [2] Hosea 2:21. [3] Dr. Robert Redfeld, quoted in https://www.cbsnews.com/news/covid-face-mask-protection-vaccine-cdc-director/ [4] https://www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2015/12/17/09/14/universal-access-to-contraception [5] https://www.bostonglobe.com/2020/09/17/nation/five-maps-that-show-just-how-much-us-is-dealing-with-now/ [6] Hosea 2:21.

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