Jonathan Ziring

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

– The Universal Declaration of Human Rights, Article 18

Introduction

A central belief to most modern people, including observant Jews, is that of religious freedom and toleration. Yet a perusal of Tanakh, Mishnah, Talmud, or Midrash (not to mention Maccabees or Josephus) will uncover laws and narratives that make it clear that the Torah did not encourage “tolerating” idolatrous religions, especially in the Land of Israel. As the Jews entered the Land, they were enjoined to destroy the temples and religious artifacts of the indigenous peoples, and were warned against establishing treaties with them, lest they be influenced by that culture. To at least some extent, the Jews did follow these instructions when they entered the land.[1]

For most of the last two thousand years, Jews were rarely in a position to prosecute practitioners of other religions – they had their own problems to worry about. Even now, in the Diaspora, Jews are not in control, so they can happily live in malkhuyot shel hesed (kind nations) that allow them to enjoy religious freedom, without worrying about who else enjoys those rights. However, the establishment of the State of Israel forced halakhic authorities to at least ask the question – should an ideal Jewish state have religious freedom?

These laws are relevant today, because while Islam is generally not understood to be idolatry, Catholicism (even for non-Jews) is subject to a dispute and quite possibly is idolatry.[2] Other Christian denominations are harder to define. Some religions, such as Hinduism, are usually understood to be considered idolatry, despite some recent attempts to argue otherwise.[3]

Posekim take three general approaches to the question of whether the modern State of Israel should have religious freedom, each of which typifies a mode in which contemporary Jews engage with modern values. Some reject modern values in favor of (a particular interpretation of) Torah values; others seek to reconcile the two pragmatically as a concession to reality; and others interpret the Torah, often in creative ways, to bring modernity and Torah closer together on the level of values.[4]

The Halakhic Background: Destruction of Idolatry in Israel and the Diaspora

The exact parameters of the obligation to destroy idolatry are quite complex. The Torah describes the people’s responsibilities regarding idolatry as they enter the Land of Israel:

These are the laws and rules that you must carefully observe in the land that the Lord, God of your fathers, is giving you to possess, as long as you live on earth. You must destroy all the sites at which the nations you are to dispossess worshiped their gods, whether on lofty mountains and on hills or under any luxuriant tree. Tear down their altars, smash their pillars, put their sacred posts to the fire, and cut down the images of their gods, obliterating their name from that site. ( Deuteronomy 12:1-3 )

This commandment to destroy idolatry is referred to by the Talmud as the “positive commandment [associated with] idolatry” ( Sanhedrin 90a ). A simple reading of these verses indicates that this obligation applies only in the Land of Israel. Indeed, when the Talmud in Avodah Zarah (45b) discusses the law, the focus is exclusively on how it is to be fulfilled during the conquest of Israel.

Elsewhere, however, the law seems to be viewed differently. In the context of distinguishing between “land-dependent laws” that only apply in Israel, and “land-independent laws,” Kiddushin 37a seems to take destruction of idolatry as the paradigmatic law that applies everywhere: “Just as [the destruction of] idolatry is singled out as personal duty, and is obligatory both within and without the land, so everything which is a personal duty is incumbent both within and without the land.”

The commentaries are divided on how to reconcile the implications of these divergent sources. Tur ( Yoreh Deah 146 ) takes the formulation in Kiddushin as capturing the whole story, and thus rules that “it is a commandment for all who find an idol to destroy it,” without noting any difference between Israel and the Diaspora. Ramban (Kiddushin 37a) goes to the other extreme, arguing that the commandment only applies in Israel. He argues that the passage in Kiddushin refers to a related law – the prohibition of building altars outside of the Temple – which applies within Israel and without, but the laws regarding destroying idolatry are indeed Israel-dependent. Maharsha ( Hiddushei Aggadot Berakhot 57b ) seems to follow this approach, arguing that only in Israel does one make a blessing –“to uproot idolatry from our land,” implying that the law itself applies everywhere.

The Sifrei ( Re’eh 61 ), followed by several authorities, such as Rambam ( Hilkhot Avodah Zarah 7:1 ), Semag ( Mitzvat Aseh 14 ), and Hinnukh ( 436 ), takes a middle approach, ruling that the obligation to destroy idolatry exists both in Israel and the Diaspora, but to different extents. Whereas in Israel one is obligated to actively seek out and eradicate idolatry, in the Diaspora one must only destroy idols that end up in his domain, but need not seek them out. The position of Shulhan Arukh ( Yoreh Deah 146:14 ) is unclear, though many of the commentaries seem to assume he follows Rambam (Biur Ha-Gra ibid., Taz ibid. 12, Shakh ibid. 15 ).

Various approaches are suggested to explain the distinction between Israel and the Diaspora, some of which have practical implications for modern times. One school of thought believes that the nature of the obligation is to destroy all idolatry in spaces that one owns. While in the Diaspora that only applies to property one owns on a financial basis, Israel is considered “Jewish-owned land” at all times, even prior to its conquest, thus generating a constant obligation to destroy idolatry there.[5] Hinnukh ( 436 ) implies that the difference is not about ownership but power. Fundamentally, the obligation to destroy idolatry exists wherever one has power. The assumption that underlies the different rules in the Diaspora and in Israel is that in the Diaspora, unlike in Israel, Jews do not have the authority to uproot idolatry (outside of their own homes). The implication, however, is that even in Israel, since in the contemporary situation Jews do not have authority to destroy idolatry at will, there is no obligation. Another approach is offered by Rabbi Joseph Soloveitchik,[6] who argues that the added obligation in Israel stems from the commandment to conquer the land – including “purifying it,” i.e. conquering it spiritually. Rabbi Baruch Weintraub gives yet another approach when he suggests that in Israel Jews are obligated to establish a certain culture – which requires being active in rooting out idolatrous worship.[7] This explains why some argue that even the obligation to denigrate idols only applies in Israel[8]: only in Israel can Jews establish the culture, including the objects of scorn.[9]

The Modern Challenge

If ever there was a law that was the antithesis of the value of religious tolerance, the law to destroy idolatry is it.[10] A modern halakhic authority then, has three possible paths to take, as noted above: reject the modern value, find ways of reconciling Torah and the modern value practically, or provide an understanding that allow the two value systems to jive.

A. Reject the Modern Value

Rabbi Menachem Kasher (ch. 13, Ha-Tekufah Ha-Gedolah ) was challenged following the Six Day War as to how religious soldiers had been so derelict in their halakhic obligations during the battle in Jerusalem in not destroying idolatry (presumably referring to churches). His interlocutors assume that while modern sensibilities may encourage religious tolerance, halakhah does not. Thus, if the soldiers were truly religious, they should have taken the opportunity, during their “conquest” of Jerusalem, to destroy any vestige of idolatry. This approach represents the first possibility – to follow halakhah straightforwardly, regardless of modern values. However, for many reasons, most authorities did not take this view.

B. Pragmatic Solutions

The most mainstream perspective is that suggested by Rabbi Kasher in his response. As noted above, one possibility for distinguishing between Israel and the Diaspora is assuming that the critical issue for fulfilling this commandment is political power. Although Israel is a sovereign Jewish State, it does not actually have the full ability to do what it wants. Israel is bound by international law and norms, and were it to issue an order to destroy all churches and Hindu temples in Israel, the international community would intervene. Rabbi Kasher’s position echoes that of Rabbi Yitzhak Herzog, written in the formative years of the state. Rabbi Herzog notes that, as Israel was created by the United Nations, it implicitly accepted international values, such as the freedom of religion, enshrined in Article 18 of the Universal Declaration of Human Rights.[11] As he writes, Israel would not have been established otherwise:

What should we do? Tell the nations ‘we can’t accept this condition because our holy Torah forbids a Jewish government from permitting Christians to dwell in our lands, and even more so idol worshippers’? More than that, [the Torah] forbids us from permitting their worship in our lands and forbids us from permitting them to acquire land. It seems to me that a rabbi cannot be found in Israel with a brain and common sense, that thinks we must respond this way, meaning that this is our obligation by the law of the holy Torah…. Even if we assume that when we accepted the state with this condition the Jewish government would violate a prohibition when we fulfill this condition, even so I would say “the prohibition is overridden to save the lives of the Jewish nation,” when we pay attention to the situation of the nation in the world. And even though [the right/obligation] of protecting lives does not stand up to idolatry, or even its ancillary parts, that is only with regards to Jews themselves, but the prohibition of tolerating gentile worship, and certainly the prohibition against them dwelling in the Land and the like, is not included, and it does not override saving the lives of the collective Israel. Even more so, there are cases where we can violate Torah law [to prevent] enmity.

Rabbi Herzog goes on to emphasize how important it was, following the Holocaust, to establish a state, even if it would come with certain halakhic costs.

Thus, Rabbis Herzog and Kasher justify religious tolerance in practice as a concession to reality.

Falling Short

This approach, while in practice allowing those who care about Torah to endorse religious tolerance, does not sit well with many modern Jews who consider religious tolerance to be an intrinsic value based on values they see as inherent in the Torah itself. As Gerald Blidstein notes in his discussion of democracy, finding practical ways of allowing democracy in a Jewish state does not do justice to the way many modern halakhic Jews feel about the value of democracy ( “ Halakha and Democracy,” Tradition 32:1 (1997)). Those who both think democracy is an inherent good and are committed to Torah values need to find the roots of such values in Torah itself to truly be comfortable with a Jewish democratic state. Is there any way to do the same for religious tolerance?

An additional problem, which is beyond the scope of this article, is whether this argument is fully accurate nowadays. After all, many of Israel’s positions are opposed by the international community, and it is often accused, correctly or not, of violating international law. Often it ignores those criticisms, and it has continued to survive and even thrive. Additionally, many other countries have no trouble violating international law without censure or significant repercussion. I know of no authorities who have reexamined the pragmatic assertions of Rabbis Herzog and Kasher in light of the above, although it is not impossible that they have or will.[12]

C. Embrace

Rabbi Yehuda H. Henkin, in a lengthy responsum regarding donating towards the building of churches ( Shu”t Benei Banim 3:36 ), offers an approach that almost embraces the value of religious tolerance. After justifying why there is no obligation to destroy churches in Israel in a similar vein to Rabbi Herzog, he continues:

The following should not be difficult in your eyes: “How can Christians, who are defined as idol worshippers and are liable to the death penalty by Torah law, but who are cultured and actors of kindness who do good to Israel…” [How can it be the Torah would require destroying their idols?] It must be that the Torah foresaw that this would be the reality, despite the prohibition… [Rabbi Henkin then cites Rambam, Hilkhot Melakhim 11:9 , to prove that the Messiah will bring about global repentance:] “However, in the times of the Messiah, the nations will return to the truth… and they will know that their parents inherited falsehood, and that their prophets and parents led them astray,” and thus we won’t have to judge them.

Rabbi Henkin is arguing, in a striking formulation, that we should relate to these laws as we do the laws of the rebellious son – derosh ve-kabbel sakhar, they are not meant to be implemented, but rather exist solely so we can learn the laws and be rewarded!

In other words, Rabbi Henkin argues that while at some point in history God wanted the Jews to root out idolatry, He ordained that modern times would be times of religious tolerance. In other words, God fundamentally values religious tolerance! Admittedly, He would rather that the whole world served Him, and there were times in history God thought it best for the world that monotheism (or at least the opposition to idolatry) be imposed. However, that is no longer what He wants for the world. Instead, He wants us to understand how egregious idolatry is, but not do anything practical about it until such a time that we can, in the spirit of Beruriah, rid the world of sinners by making them no longer sin ( Berakhot 10a ).

It emerges that a modern Jew could believe that God orchestrated history to allow for a period of religious tolerance – making that a value, rather than a concession.

Conclusion

While I am not sure that I personally am convinced by Rabbi Henkin’s analysis, what is clear to me is the following: Many Religious Zionist Jews take pride in Israel being the only democratic society in the Middle East and the only Middle Eastern country with religious freedom, and also believe that ultimately their Zionist values are a reflection of Torah. Yet, they have never asked themselves whether they would actually be comfortable standing behind a modern State of Israel that reflected purely halakhic values. For those who are okay with accepting that an ideal halakhic state would not have religious freedom, this exercise is not necessary. However, for those who want to believe that the religious freedom of the modern State of Israel is an ideal and not a concession, while still claiming that their values are rooted in Torah, an attempt must be made to offer an explanation that reconciles the two at the level of values. Highlighting the gap that exists may be uncomfortable, but it is necessary to develop a mature view of Religious Zionism that does not hide from the difficult questions. If one is not convinced by Rabbi Henkin’s attempt, but does not identify with the other perspectives outlined above, it is incumbent on him or her to delve into the halakhic material and propound a suggestion that, with integrity, can bridge the divergent values he or she holds dear.

[1] The failure of many tribes to properly fulfill these obligations sets the groundwork for the corruption in the Book of Judges.

[2] The view that Islam is not idolatry is the majority position. However, there are rabbinic opinions that ruled that Islam does qualify as avodah zarah. Many of those positions, however, are based on a misunderstanding of Islam. For a summary of the issues, see Marc Shapiro, “Islam and the Halakhah,” Judaism 42:3 (Summer 1993).

Rambam ( Hilkhot Avodah Zarah 9:4 ) assumes that Catholicism is idolatry; Rama (Darkei Moshe Orah Hayim 156:2) assumes, based on a particular understanding of Tosafot, that it is not (for non-Jews), though he is famously challenged by the Noda Be-Yehuda (Shut Noda Be-Yehuda 2, Yoreh Deah 148). Often discussed is the potentially novel position of Me’iri, as understood by Professor Moshe Halbertal in “‘Ones Possessed of Religion’: Religious Tolerance in The Teachings of The Me’iri” in Edah 1:1 (2000). See, however, my teacher, Rabbi Aryeh Klapper’s critique of his position in brief here: http://text.rcarabbis.org/what-is-the-halakhic-status-of-the-doctrine-of-the-trinity/ , a full version of which was presented at AJS 2007.

[3] This is the conclusion of a yet unpublished paper by Rabbi Daniel Sperber entitled “The Halachic Status of Hinduism: Is Hinduism Idolatrous? A Jewish Legal Inquiry.” His position is discussed in Annette Wilke’s article, “The Hindu Jewish Leadership Summits: New ‘Ground-breaking’ Strides of Global Interfaith Cooperation”, published in Between Mumbai and Manila: Judaism in Asia since the Founding of the State of Israel (Proceedings of the International Conference, held at the Department of Comparative Religion of the University of Bonn. May 30, to June 1, 2012), ed. Manfred Hutter (Bonn University Press, 2013)

[4] This analysis will in many ways parallel those of Rabbi Yosef Bronstein’s Lehrhaus article concerning gender roles within marriage .

[5] See Tzafnat Panea h , Hilkhot Avodah Zarah 7:1. Avi Ezri ibid formulates a similar idea, arguing the critical category is what is considered one’s “home.” There are resonances of this idea in Tosafot, Avodah Zarah 21b s.v. “af” (starts on 21a).

[6] See Rabbi Yair Kahn, “Le-Ha’avir Gilulim min Ha-Aretz”, Alon Shevut 145.

[7] In private communication to this author.

[8] See Shakh 15 citing Maharshal.

[9] See, however, Taz 12 who argues. For a similar phenomenon, see Makkot 7a regarding the obligation to establish courts.

[10] Another strong contender is the obligation to execute idolators, but as there are no halakhic courts with the ability to impose criminal punishments, this is not addressed by modern authorities.

[11] “Rights of Minorities According to Halakha” [Hebrew] Techumin 2, pages 169-179, republished in Tehuka Le-Yisrael al Pi Torah Chapter 2.

[12] Thanks to Rabbi Shlomo Zuckier for making this point.