Dina d'Malkhuta Dina                                                      

Dear Friends,

We have much to celebrate on this 239th anniversary of American independence. We Jews continue to prosper in the only country in the world founded on principles of equality (even if not equality has not always been the practice and the fight for it continues). Following on the heels of the momentous Supreme Court decision of last week that made marriage equality the law of the land, we read this week of the statements by some state legislators, in particular the Texas Attorney General, that state clerks do not have to issue marriage licenses to same-sex couples if doing so violates the clerks’ religious beliefs. While I believe these politicians’ actions to be totally reprehensible – in short, they should be arrested and tried for instructing their employees to break what is now Federal law – this did raise for me the halachic concept of dina d’malkhuta dina. What that concept, expressed four times in the Talmud, means is, literally, that the law of the kingdom is the law – that is, it is binding and in some cases preferable to halacha, Jewish law. The first rabbinic sage to expound this concept was Shmuel, a third century Babylonian rabbi. He represented the Jewish community to the new ruler in Babylonia, and established that the Jews are obligated to follow the laws of the state (that is, he defined “kingdom” to mean any secular law). The limitation, however, is when these laws conflict with Torah-derived ritual laws.


If we try to retrofit that concept onto the situation of Christian religious clerks refusing to give same-sex couples marriage licenses in fulfillment of Federal requirements, we run into some problems. Does Christianity even have an idea analogous to dina d’malkhuta dina? Perhaps the closest is Matthew, chapter 22, in which the Pharisees ask Jesus tauntingly if it is lawful to pay taxes to the emperor. He points out that the tax, a coin worth a day’s wages, bears the image and title of the emperor and says, “Give therefore to the emperor the things that are the emperor’s, and to God the things that are God’s.” This answer seems to befuddle his questioners and they leave him alone, needing to answer the question for themselves. But I think that we are equally confused by it. What is Caesar’s and what is G-d’s? The Romans might say everything is Caesar’s, while a traditional Jew or Christian might say everything is G-d’s. I don’t see this quotation as being equivalent to dina d’malkhuta dina – the Jewish concept is that the Jew is obligated to follow the laws of the state as long as they don’t demand breaking the commandments.


In Romans 13, Paul says very much the same thing, bringing up the idea that authorities are such because G-d has placed them in their positions of authority, so they should be obeyed. But humans are flawed – can we really believe that all people in positions of authority are Divinely ordained to have and exercise that authority? Can the Attorney General of Texas claim to be acting on G-d’s behalf? For that matter, can the justices of the Supreme Court? An obvious difference is that the latter make no such claim. Focusing on people in authority just muddies up the waters – law has to walk that delicate balance between the personal and the impersonal. Once the process has been followed and the law established, we Jews are obligated to obey those laws. I’m not convinced, despite Matthew’s and Paul’s statements in the New Testament, that the same obligation exists in Christianity, which inherently might not recognize the American church-state separation that so many of us consider to be sacred.

Perhaps the reason Christianity has no teaching exactly analogous to dina d’malkhuta dina is that deftly navigating the rapids of power and authority has not been a major challenge for them as the majority religion and the decider and wielder of authority, Christianity as a whole has not faced the kinds of decision making that have been the nearly daily diet of the Jews for millennia. Many of the political leaders telling folks to break the law don’t seem to understand that separation, and that this is not a Christian country, but rather that American law supersedes religious law, and that their religious beliefs do not decide what is right for all Americans.

The latest Supreme Court ruling does not accord with the strictest religious Jewish teachings, either – the Torah in Leviticus is fairly clear about, at least male, homosexual acts, calling them an abomination, as it labels breaking Shabbat or eating shellfish – but the ruling is completely in accord with the Jewish mission over the ages of making the world freer, more equal, and more accepting to all. We can emphasize that Jewish historical role while continuing to advocate for the separation of church and state and continuing to fight for justice and acceptance for all in our nation and in our world. In that way, we can continue to be both proud Americans and authentic Jews.

Shabbat Shalom and Happy Independence Day!