Parshat Pinchas falling on the 250th anniversary of the Declaration of Independence seems particularly apropos when we consider one of the stories in the Torah reading this Shabbat: that segment of the parshah that raises the question of legislation without representation. It is an issue of what the halakhah (Jewish Law) is for whose voice is heard in making halakhah itself. That issue is still alive not only in halakhah but in American society today.
The story in Pinchas is that a leader in the tribe of Menasseh named Tzlof’chad has died, leaving five adult daughters. (Numbers 27:1-11) The inheritance laws, as they have been promulgated by Moses and God, remove Tzlof’chad’s prospective property distribution from his daughters and from their descendants because Tzlof’chad had no sons.
With some chutzpah, the daughters — Mahlah, Noah, Hoglah, Milcah, and Tirzah — stand up and confront Moses, the high priest, and the powerful men of the assembled community and demand that they fix the situation. Moses goes to the “Higher Authority” in the Tent of Meeting, who agree with the daughters and order Moses to essentially re-legislate a correction. This not only affects Tzlof’chad’s progeny, but any women similarly situated. It is not an exception to the law, nor an interpretation; it is a revision to the law itself.
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Commentators often judge Moses harshly for this act, interpreting it as a failure of faith or obedience. But I seThe point here is that neither God nor Moses anticipated this problem when they originally promulgated the laws of inheritance.
The problem is still not fixed when it is subsequently brought to their attention by the leaders of the Menasseh tribe (in parshat Mas’ei, Numbers 36:1-12) that the new law has not anticipated yet another problem arising from the first correction.
How these issues are resolved is not the point of this d’var. Rather, it is the meta-issue of how the laws were promulgated in the first place. In this case, women were totally absent in the establishment of the laws of inheritance, and this was true not only in the Torah story, but no doubt in reality as well. After the fact, women came forward to point out what the men failed to take into account when the laws were created. Later still, another legal anomaly was brought to attention by another group which was not represented when the initial legislation was revised.
In the last six decades of the Jewish experience, we have witnessed how women’s voices have been a major factor in bringing up hitherto unaddressed gender issues that are still subject to negotiation in halakhah.
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In a similar vein, the issue of legislation and judicial decision-making with insufficient representation has been a major factor in challenging the laws of our secular society. Obviously, the 19th amendment would not have been secured without the agitation of women demanding the vote. The struggle of disenfranchised Black people against slavery played a decisive role in the promulgation of the 13th, 14th, and 15th amendments. Similarly, disenfranchised Black Americans were the force behind securing the Civil Rights and Voting Rights Acts. These struggles not only were for the repair of the harms suffered by the unrepresented, but they also sought to repair the lack of representation itself.
The case of Ledbetter v. Goodyear Tire Company in 2007 is only one example of how a lack of effective representation results in egregious harm. The plaintiff, Lilly Ledbetter, sought a remedy for gender-based pay discrimination. The majority of justices, all men, decided against Ledbetter. The dissent was written by the only woman justice, Ruth Bader Ginsburg. The effect of the ruling was only corrected by Congress in response to a women-led movement demanding the law be set right.
Clearly, if the laws which govern our lives are promulgated by and in the interests of the privileged in the majority, then those who are insufficiently represented will be harmed. We are, at this moment, watching a growing trend of disenfranchisement promoted by MAGA leaders and others. The largely successful struggle for the ballot fought in the 1950’s and ’60’s is facing a backlash abetted by the Supreme Court. In the course of a series of cases, most recently Louisiana v. Callais decided in April, the court has increasingly eviscerated the Voting Rights Act of 1965, allowing states with a history of voting discrimination to redraw their districts to reduce or eliminate black representation in Congress and in state legislatures.
New legislation by a new sympathetic Congress may or may not be able to overturn the effect of the harmful voting rights cases. But failure is assured if we do not apply the still relevant tactics of Tzlof’chad’s daughters to stand up together and demand rectification.
Happy Fourth and good Shabbos.
David Cooper is rabbi emeritus of the activist shul Kehilla Community Synagogue in the Oakland/Piedmont Area of the East Bay.