The Mandate of Inclusion

Introduction [source 1]

When it comes to our responsibilities towards those with disabilities, whether physical, educational developmental, or social-emotional – and indeed, any person or group that is being or can easily be marginalized – we first must problematize the use of the word “inclusion.”  This word suggests a group or person who is on the outside that we – those who are the true members of the group – will now bring close and include among us.  In fact, our first obligation is to recognize that we are all part of the group, and that it is our mandate to not exclude and push – though action, inaction or simple inattention – anyone to the margins or outside the group entirely.  

What do the following verses tell us about inclusion and exclusion?

1. Numbers 9   |   במדבר פרק ט

The grievance that the people who were tamei and could not eat the korban Pesach – could not participate in ritual of communal and national identity – raised to Moshe {source 1} was not a request for inclusion but rather the fundamental wrongness of exclusion: “Why should we be excluded?!”  The rightness of their complaint led to God issuing a new law, ensuring that nobody would be excluded.  This should serve as a model for our religious leaders and us as a community.  Most people are kind and caring people, and we never knowingly exclude someone or discriminate against him or her.  Often, however, we fail to realize how things we are not doing – things we may not even be aware of – are telling people that they are not wanted.  

I remember hearing Rabbi Michael Levy, a rabbi who is blind, speak at the yeshiva on the topic of disabilities.  He said whenever he meets a shul rabbi, he asks him “Do you have Braille siddurim?”  The answer invariably is “no.”  “Why not?” he then asks.  “Well, because no one blind ever comes to the shul.”  At this point, Rabbi Levy told us, he usually pauses a few seconds, and then says, “Do you think there might be a reason that no blind people are coming to your shul?”.  The problem most of the time is not conscious exclusion, it is an exclusion that emerges from not dedicating ourselves to the task of thinking of all that needs to be done to make sure that everyone is included.

This verse also demonstrates that the people who complained to Moshe were given a voice and were able to be part of the process.  This underscores a key principle of the disabilities community: “Nothing about us without us.” If we truly believe that everyone is part of the community, then we include them in the decision-making process, not merely make decisions – no matter how helpful and well-intended- without their involvement.  Such involvement not only recognizes that everyone is part of the community, it also ensures that all the relevant issues will be raised and that the needs will be more accurately understood.  

Significantly, God’s response that there would be a second Paschal sacrifice in the following month, ends with a verse underscoring that the ger, the sojourner, also may and must bring the Paschal sacrifice. In this foundational ritual of community identity, we must ensure equality and full membership for everyone, even – or perhaps especially – for those who are likely to be seen as at the edges or even on the outside.  We can allow no one to be excluded.

Mitzvot Relating to the Ger [sources 2-5]

A more detailed and specific understanding of our obligations in this regard can be learned from the mitzvot relating the ger – to love the ger and to not afflict him {source 2-4}.  In looking at the following verses, try to understand who – according to pshat – is the ger that the Torah is referring to.  Is it the convert, as understood by the Rabbis, or someone who is not yet part of our community?  What do these two readings tell us about our obligations to those in and out of our community?

Take note how the Torah {source 4} juxtaposes God’s elevated status with God’s care for the widow, the orphan and the stranger.  What can be learned from this juxtaposition?  

Take note, also, how the Torah {source 2-4} connects these mitzvot to our own experience in the land of Egypt.  What is the purpose of making this connection, particularly in these mitzvot as opposed to others?

2. Exodus 23    |     שמות פרק כג

3. Leviticus 19  |   ויקרא פרק יט

4. Deuteronomy 10  |   דברים פרק י

Who is the ger in the Torah?  The Rabbis understood this to be the convert – the person who started outside of the Jewish people but is now a member of our faith.  The pshat of the verses {sources 2-4}, however, is that the ger is the sojourner or immigrant – the foreigner who is dwelling in, or has come to live in, our land (as opposed to the nakhri, the foreigner living in a foreign country).  It is in this way that the Torah can say that we were gerim – sojourners, not converts – in the land of Egypt, and that there must be one law for the citizen (ezrach) and the sojourners/immigrants in the land.  At the pshat level, the Torah is telling us that we must treat even a person who is an outsider as if she is one of us, if she is currently living among us.  For the Rabbis, who lived after we lost sovereignty to the land, and at a time when our identity was defined purely by religion, and not by land and country, the ger of the Torah meant someone who was among us in a religious sense, i.e., the convert, who was fully one of us, or in some cases the ger toshav, the non-Jew who keeps the Noahide laws and subscribes to our religious system.  In this understanding, the Torah’s mandate is more limited – not that we must treat the outsider equally, but rather that we must treat those who came from the outside and who are now one of us with full equality.  

In line with the Sefer HaHinukh {source 5}, this concept of ger and the attendant obligations, can logically be extended to all people who may find themselves alienated, excluded, at the margins, or without proper communal support, a category that would clearly include those with disabilities.

5. Sefer HaHinukh, Mitzvah 431   |   ספר החינוך מצוה תלא

Returning to Devarim 10:19 {source 2}, we see that before telling us that we must love the ger, the Torah tells us that God, who is high and mighty, loves the orphan, the widow and the ger, those who are most vulnerable and likely to be marginalized.   The point of this juxtaposition is to teach that ethical acts are some of the most profound religious acts – that we are most acting like and close to God not when we are doing ritual mitzvot that set us apart from everyone else (trying to be “high and mighty” like God), but when we are doing moral acts towards our fellow human beings.  Our ethical obligations are religious ones, and our priorities must be aligned accordingly.  As Reb Chaim Solveitchik said when asked why he is so lenient regarding violating Shabbat for almost any health issue: “Don’t say I am lenient regarding Shabbat; I am very strict regarding pikuach nefesh, the obligation to protect life.  [See below, in the discussion of sources 10-11.]

To love to the Ger [sources 6-9]

The Torah connects the mitzvah to love the ger to the fact that we were gerim in the land of Egypt {sources 2-4}.  The purpose of this is to underscore the weight of our obligation – based on our personal experience, we will understand how important these mitzvot are.   These verses also teach, I believe, what the mitzvah to love the ger is about.  Having a shared experience allows us to understand the other, to see ourselves in their position; to empathize, not merely to sympathize.  This is stated explicitly in the Sifra {source 6}.  To “know the soul” of another person is to fully understand and identify with them, in other words, to empathize with them.

6. Sifra, Kedoshim, Parsha 3, Vayikra 19:34    |   ספרא קדושים פרשה ג

It is possible to understand that this is the very mitzvah to love the ger: to empathize with the ger and his or her plight.   

In the disabilities world, there is a saying that the world is not divided between those with disabilities and those without, but between those who have disabilities and those who do not yet have disabilities.  G-d willing, we will live a long life, and eventually we will all deal with some limitations of our abilities –mobility, sight, hearing, and mental acuity.  When I am standing behind an elderly person in the checkout line, who is slowly counting his change and taking forever to finish, I can grow very impatient.  At that moment, I remind myself – that person in front of me is me 20 years from now.  How would I feel about the young whippersnapper behind me who didn’t have time to let me finish my shopping?  With a ger we have a shared past, with those with disabilities we have a shared future.  The key is empathy.  Once we identify with the other, everything else will flow from that.

Why the additional mitzvot?

The Talmud (Baba Metzia 49b) states that to oppress a ger falls under two prohibitions: oppressing a ger and oppressing a fellow Jew.  Similarly, Rambam states {source 7} that there are two mitzvot to love a ger: the mitzvah to love a ger and the mitzvah to love a fellow Jew.  

Are these extra mitzvot regarding the ger just a repetition and reinforcing of the mitzvot regarding another Jew, or do they add a new dimension to the mitzvah?  Notice how Rambam {source 7} states that the mitzvah to love the ger is similar to the mitzvah to love God.  What parallel does Rambam see here?  Couldn’t one equally say that the mitzvah to love a fellow Jew is similar to the mitzvah to love God?

7. Rambam, Laws of Character Traits, 6:4   |   רמב”ם הלכות דעות פרק ו הלכה ד

Rambam’s statement can be understood when we note that when it comes to loving one’s fellow Jew the Torah states vi’ahavta li’reyacha kamokha, using the preposition li, ‘towards’, whereas when it comes to loving the ger the Torah states vi’ahavtem et ha’ger, using the word et to identify the object of the verb, the object of the love.  The use of the word et is the same as we find by the mitzvah to love God: vi’ahavtah et Hashem E-lokekha.    This small difference points to two different types of love.

Ramban {source 7} explains the significance of the preposition li, love towards your neighbor.

8. Ramban, Commentary on Torah, Vayikra 19:17   |   רמב”ן ויקרא פרק יט פסוק יז

Ramban states that it is impossible to truly love our neighbor kamokha, as much as we love ourselves.  However, the Torah is not commanding us how we are to feel about our neighbor, only how we are to act: love towards your neighbor.  In other words: do unto your neighbor as you would have him do onto you.  This, we can note, is in contrast to the mitzvah to love the ger (and – li’havdil – to love God).  There we are told to love et, to actually love the ger, to actually have the emotion of love for the ger.  Since the Torah is commanding us to actually love the ger, it drops the word kamokha, ‘as yourself,’ since it would be impossible to love someone else as much as we love ourselves (and those who are closest to us).  The key, though, is that the mitzvah to love the ger is not to limit it to how we act.  We must actually feel love for the ger, a love that I have described above as empathy.

To do properly for those with disabilities, we must truly care and feel and identify with their situation.  I remember once talking to a rabbi about the question of whether a kohen who was confined to wheelchair could do birkhat kohanim.  This rabbi was not motivated to explore whether there could be any halakhic allowance for this.  “What’s the big deal?” he said.  “I’m not a kohen; I never get to make birkhat kohanim. Let him just accept it and move on.”  Such a response is a failure in the mitzvah of ahavat ha’ger.  There was no attempt to really feel for the other person, to begin to understand how being a wheelchair user can strip a person of their autonomy, engagement with the world.  

Let us not forget that birkhat kohanim takes place with families – a father and his children go up to do birkhat kohanim together.  But now a son is confined to a wheelchair.  He sees his father and brothers go up, and he must remain behind.  What does this do to his sense of identity and sense of self?  He is being told that he is not really a kohen like they are, he is not even an equal part of his own family – he is left behind, literally, because he is in a wheelchair.  At a time when his physical condition tells him that he no longer is who he was, what would it mean for halakha to come and rob him of his identity, to tell him that from a Jewish perspective as well “you no longer are who you think you are”?  

Thinking this way isn’t easy.  It requires effort, and the exercise of both imagination and empathy.  And it requires encounter and engagement – getting to truly know the people who your actions, or your halakhic rulings, impact.  This is the mitzvah of ahavat ha’ger.

A final aspect of the mitzvah of loving the ger is added by Rav Hutner {source 9}.  Rav Hutner notes how the verse {source 4} states that God does justice for the orphan and the widow, but when it comes to the ger, the Torah states that God loves the ger.  This indicates for him that the ger’s status is not (just) because he is in a vulnerable and potentially marginal position, like that of the orphan and the widow.  In what way might the ger be in a different category than the orphan and the widow, and how might this connect to the mitzvah to love the ger?

8. Pachad Yitzchak (Rav Yitzchak Hutner), essay 8, section 2   |   פחד יצחק, פסח, מאמר ח’ אות ב’

For Rav Hutner, the love that God shows the ger and our obligation to love the ger is not a function of his potentially disadvantaged status. Rather, it stems from our recognition of the elevated status of the ger.  A ger has made an amazing choice – to leave his past life, and all its freedoms, and to be part of the Jewish people.  This demands recognition and acclaim.  This is why God loves the ger, and it is in this way that love of the ger is to be compared to love of God.

A person with disabilities has also made an amazing choice.  She has chosen  to stay within the Jewish community even when receiving so many messages that she is not wanted and not welcome.  We have not institutionalized accessibility or those with physical, learning, social-emotional, and developmental disabilities, not in our schools, not in our synagogues, and not in our Jewish institutions. Their choice to stay in the community must move and inspire us to respond in kind.  We must do everything in our ability to institutionalize accessibility and to make sure that she has an equal a place within our community,

To Not Afflict the Ger [source 10]

There are to mitzvot regarding afflicting a fellow Jew – not to afflict him with one’s words and not to afflict him financially, that is, not to overcharge him.  These mitzvot are doubled for a ger {source 2-3}. One may not verbally afflict a ger because he is a Jew and because he is a ger; and one may not financially afflict him both because he is a Jew and because he is a ger.

These special mitzvot seem to be the other side of the coin of the mitzvah to love the ger, and to just be repeating and underscoring the mitzvot to not oppress or afflict a fellow Jew.  But it goes deeper than that.  The point of the repetition is first to warn us to not feel that we can act with less care towards this person who we perceive of as different, as not fully one of us.  Second, when it comes to verbal affliction, we must know that our words and actions can be much more hurtful when experienced by someone who might already feel vulnerable and marginalized (see Baba Metzia 59a).  Implicitly questioning someone’s membership in the group, or just calling out a person as different, is a form of ona’at ha’ger.  In the case of disabilities, I know of a shul that had a ramp to the bimah, and insisted on everyone using it, so no one would have to feel different.  Then a new rabbi came, and declared that the ramp would only be taken out when needed.  As a result, a number of the members who were disabled, felt singled out for their difference and marginalized by the community, and they eventually left the shul.

In the case of disabilities, we as a community are also guilty of the second type of afflicting, the prohibition against overcharging.  When a person with disabilities wants to enter a school – and let us not forget that there are still many schools who will not accept students with certain disabilities – the tuition is exorbitant, usually double that for a child without disabilities, and the cost has to be shouldered fully by the parents.   This is true in camps as well.  The same is true in camps.  In most cases, even the camps that accept students with disabilities, place the burden of any additional costs – for a shadow, for physical accommodations – on the shoulders of the parents.  Technically, this is not over-charging, for the costs are great in these cases and more services that are being provided.  Morally, however, it is definitely overcharging.  We as a community are saying: to get equal education, to get an equal camp experience – you, the person with disabilities, must pay much more than everyone else.  

So far we have been looking at the mitzvot against afflicting a ger as a mere repetition and underscoring of the same mitzvot that apply to every Jew.  Or Samayach {source 10} takes this one step further, and demonstrates how these mitzvot take on another dimension when applied to a ger.  He points out that these mitzvot, when applied to a Jew, refer to two things: not overcharging (monetary affliction) and not saying hurtful words (verbal affliction).  However, in the case of a ger, Rambam indicates that they are intertwined – to afflict a ger with money is to afflict him with words, and vice-versa.  Why might this be?

10. Or Samayach, ad. loc.     |     אור שמח שם

Or Samayach explains that the difference in the case of the ger is not due merely to what thing is being said or done, it is due to how a thing is being heard or perceived, by the ger and by the community.  A person might overcharge everyone, but when the ger experiences it, he is hurt emotionally as well; for him, it is a further sign of rejection and marginalization.  And when a ger is verbally insulted, it pushes him to the margins, causing him to withdraw from the community and the community to withdraw from him, which brings about financial loss as well.   Whenever we are dealing with a person who is not fully embraced by the community, we must be particularly sensitive to how thoughtless words or deeds can lead to feelings of rejection and alienation, and how one act of rejection or disregard by one member of the community can set the model for others to act likewise.

There is a concern that overdoing this – being hypersensitive in all interactions with a ger or a person with disabilities – feeds into a mindset of victimization, and also serves to set them apart from the community.  My first response is that I would rather err on the side of hypersensitivity than on the side of insensitivity, and that the risk of encouraging a mindset of victimization is less of a concern that a risk of continuing to marginalize members of our community.  Beyond that, the concern of encouraging such a mindset can be countered if we remember the principle “Nothing about us without us.” (see discussion under source 1).  If we include people in the process of accommodation and not merely make them the objects of our sympathy and sensitivity, they will not be seen or see themselves as victims.  

Equality [source 11]

Treating a ger as an equal and not as a special case is highlighted by the mitzvot relating to a ger as recorded by Rav Sadyah Gaon {source 11}.  In his list of mitzvot, Rav Sadyah Gaon does not list a mitzvah to love the ger or to not afflict the ger.  He only has one mitzvah, the mitzvah of equality: the ger must be treated as a citizen.  How does this reframe our responsibility to the ger?

11. Book of Mitzvot, Rav Saadyah Gaon   |   ספר המצוות לרב סעדיה גאון

Sadyah Gaon’s bracketing of the proactive mitzvot to love and not oppress the ger, and his underscoring of the mitzvah to treat the ger as an equal raises the long-standing debate problem of affirmative action.  As long as affirmative action measures are in place, a certain population is being singled out as different, and not really treated as equals.  On the other hand, as long as there are systemic injustices in society, we need affirmative action to serve as a corrective; we cannot make equality exist just by acting as if it already exists.   There is no getting out of this tension – the need for proactive mitzvot {sources 2-10} and the demand of fully equal treatment {sources 11}.

In the world of disabilities this happens all the time.  In order to get necessary accommodations, people must be put into categories and assigned labels – autism, intellectual disability, emotional disturbance, and the like.  But doing this is also reductive and singles them out, making people see just the labels and not the person.

I once heard Dr. Adrienne Asch, of blessed memory, a bioethicist who herself was blind, say that people with disabilities do not have special needs.  They have the same needs as everyone – to be loved, to be included, to be educated, to be able to achieve self-actualization.  Their needs are the same; they just require specific accommodations to meet those needs.  This is the true goal of equality: to see our community in all its diversity; to realize that we all have the same needs and the same goals in life; and to realize and actualize that we must give everyone the accommodations he or she needs to satisfy those needs and to achieve those goals.

A Mandate for Poskim [source 12-13]

I think it is fair to say that 98% of what needs to be done in the area of “inclusion,” is at the communal and institutional level – education of the community, and proper accommodations in schools, shuls, and camps.  But sometimes there are also halakhic obstacles to inclusion and full participation in certain areas.  In such cases, we find that there are poskim who feel compelled by the mandate of inclusion to find a way that halakha can accommodate those who would be excluded.

For example, the halakha states that a ger may not hold a position of authority.  Rav Moshe Feinstein {source 11} was asked on the basis of this a ger would not be allowed to be a Rosh Yeshiva.  Notice how he precedes his halakhic analysis with referencing the mitzvah to love the ger and how this must inform the halakhic process.

12. Iggrot Moshe, Yoreh Deah, 4:26, Rabbi Moshe Feinstein   |     שו”ת אגרות משה יורה דעה ח”ד סימן כו

In approaching this question, Rav Moshe states that he had to weigh the restriction of a ger to hold a position of authority against the obligation to love the ger and treat him equally.  For Rav Moshe, the mitzvah to love the ger mandated for him that he interpret the restriction to hold a position of authority as narrowly as possible.   He concludes that a ger may become a Rosh Yeshiva because such a position is one of consensual, and not imposed, authority.

In the area of disabilities, an example of this approach is an aliyah for a blind person.  The Shulkhan Arukh (OH 139:3) rules that a blind person cannot receive an aliyah (Rema disagrees).  R. Benjamin Aaron b. R. Avrohom Salnik {source 13} wrote a responsum on this matter after he became blind himself and understood what it meant to be excluded in this way (see discussion above regarding empathy under “To Love the Ger”).  He is explicit that the obligation to not exclude someone from this mitzvah propels him to find a halakhic solution.  

13. Responsa Maseit Binyamin, 62    |     שו”ת משאת בנימין סימן סב

R. Benjamin Aaron b. R. Avrohom Salnik lived in Poland, ca. 1550-1620. He was a student of R. Moses Isserlis (Rema)

Clearly, both Rav Moshe and Rav Salnik found legitimate halakhic solutions.  This mandate does not allow one to go outside the halakha.  But this mandate can and did push them to find a path within the halakha to make the community as inclusive as possible.

In the end of his responsum, he makes a statement that reverses the normal way of thinking about such issues.  Such issues are normally framed as follows: we really should be strict and not allow it, and those who are arguing to be lenient and find an accommodation have the burden of proof.  He states that the framing is the reverse: We must be strict on the obligation to not reject and exclude, and those who would be lenient against this obligation, and exclude someone from this mitzvah, must justify how they could be so lenient.  This echoes the earlier story of Reb Chaim Soloveitchik about not being lenient regarding Shabbat, but being strict about saving a life.  In the area of exclusion however, the calculus is even more compelling.  We are not just weighing human concerns against “religious ones.”  Excluding people comes at a profound religious cost as well.  When someone feels rejected and unwanted, they may become alienated from the Jewish community, Torah and mitzvot and “cast off the yoke of mitzvoth.” This has happened countless times.  Sometimes, when a family cannot find a Jewish school or a welcoming shul for their one child with disabilities, the entire family will choose to leave the community: “If you don’t want my kid, then you don’t want me.”

Conclusion

The mandate to not exclude, to see our community in all its diversity with all its members, to speak about “us” rather than “we” and “them” is something that we must embrace, internalize and actualize.  This is a mandate for poskim, but more importantly – a mandate for the community.  We must continue to educate, to make accommodations, to provide, and to include everyone in the process, so that no one will be able to say “Why should we be excluded?”