Arresting Folks with Unsettled Lives

I recently came across an interesting Fourth Circuit case dealing with a situation that is probably quite common: what sort of constitutional protection do people have when their living situation is not clear-cut?

According to Fourth Amendment case law, the police need an arrest warrant in order to arrest A at home (Payton v. New York, 1980), but no warrant is necessary to arrest A in public (U.S. v. Watson, 1976). But there is a third situation: what to do when A is in B’s home? Under Steagald v. United States (1981), an arrest warrant is necessary but not sufficient in this situation: the warrant protects A against unreasonable deprivations of freedom, but does not protect B against the invasion of their premises. So, to arrest A at B’s home, the police need to have two documents in hand: an arrest warrant for A and a search warrant for B’s home (with A listed as the person to be seized therein.)

This is all fine. But it turns out that some people’s situations do not map neatly unto this framework. Enter U.S. v. Brinkley (2020), a 4th Circuit case dealing with a not uncommon person with an outstanding warrant: the international man of mystery with a woman at every port.

Law enforcement agents formed a federal-state task force to execute an outstanding arrest warrant against Brinkley. ATF Agent Murphy received intelligence of two possible addresses for Brinkley, one on, let’s say, Oak Street, and one on, let’s say, Elm Street. Because the water bill for the Oak Street address was in Brinkley’s name, Agent Murphy initially believed that address was Brinkley’s most likely residence.

Detective Stark from the local police force looked on the state law enforcement database and found that Brinkley’s many traffic citations were associated with several addresses. The newest citations referenced the Elm Street address, and Detective Stark reasoned that the older addresses were “probably family addresses” where Brinkley did not reside. He looked up Brinkley’s Facebook page and found pictures of Brinkley’s girlfriend, Marnie, who was also associated with the Elm Street address. Based on this information, Detective Stark concluded that Brinkley and Marnie lived together on Elm Street.

Detective Stark reported his conclusion to Agent Murphy, who came to agree that Brinkley probably resided in the Elm Street apartment. Neither officer was certain that they had uncovered Brinkley’s address, and Agent Murphy later testified that, in his experience, it was “common for someone like Brinkley… to have more than one place where they will stay the night.”

The next morning, Agent Murphy and Detective Stark went to the Elm Street apartment to conduct what both Agent Murphy and Detective Stark characterized as a “knock-and-talk” to “start [their] search for Brinkley.” The officers intended to “interview the occupants to find out if [he] was indeed there,” and to arrest him if he was. Agent Murphy acknowledged that he “had no idea if Brinkley was going to be there that morning,” but thought the Stoney Trace apartment was the “most likely address” to “find Brinkley or evidence of his whereabouts.”

Detective Stark knocked and announced, and after a few minutes Marnie, wearing pajamas, slowly opened the door. The officers could hear movement in the background. Detective Stark informed Marnie that the officers were looking for Brinkley and asked to enter the apartment. Marnie denied that Brinkley was there, and according to Detective Stark, she grew “very nervous”; her “body tensed” and her “breathing quickened,” and she looked back over her shoulder into the apartment. Detective Stark asked for consent to search the apartment and Marnie said she did not consent and asked to see a search warrant.The entire exchange with Marnie lasted a few minutes. Both officers testified that, based on Marnie’s demeanor, the movement they heard in the apartment, and the morning hour, they believed Brinkley was inside.

At this point, the officers decided not to follow the original plan to secure the area and wait to see if Brinkley left the home. Instead, Agent Murphy told Marnie that he believed she was hiding Brinkley and that the officers were going to enter the apartment to serve an arrest warrant on him. They walked around the apartment, found Brinkley in the bedroom, and arrested him. The officers proceeded to conduct a protective sweep to check for others hiding in the apartment. They did not find anyone else, but they did find several firearms and seized them.

On appeal from a conditional guilty plea, Brinkley argued that he did not reside on Elm Street and was there as Marnie’s guest, and that the officers’ warrantless entry was unconstitutional.

The Fourth Circuit sets up the problem as if it is about classifying Brinkley’s situation as a Peyton or a Steagald scenario. But what they actually end up doing is asking two questions that differ from each other. The first one is: how certain do the cops have to be that Brinkley both resides, and is currently present, at Elm Street to walk in there without a warrant? The Fourth Circuit panel concludes that the cops would need to have more than they did in order to walk into the Elm Street address with only an arrest warrant.

But the second question has to do with a different set of concerns: for a guy like Brinkley, who has four or five cribs in town, and lives an unsettled life, where is home? Do you forego the special protection that the Fourth Amendment awards to the home if you have several places you call sort-of-home? Do you have standing in each of these places? What makes home home?

AJS Annual Meeting, Day 3

What a wonderful day I’ve had at the AJS meeting today! I highly recommend that every academic attend an annual meeting as if they were attending a science fiction or anime conference, and go to panels that strike their fancy and are interesting to them. Today I gave myself license to attend panels on topics that interest me deeply, including art and music, and learned a lot.

I arrived late this morning for the Jews Imagining Empire panel, and so missed Yaniv Feller’s presentation, in which he proposed to frame early modern Germany as a real or (after Anderson) imagined empire. I did, however, enjoy the Q&A, in which people asked whether there were features that distinguished empires from nation states, and in what ways are there empires without colonies. Yaniv said something interesting: empires support the nation state by defining the “other”.

Then, Roger Lernon talked about Franz Kafka’s writing about imperial scenarios from faraway lands (“The Great Wall of China,” “The New Advocate” about Grece, and “The Hunter Gracchus” about Rome), to express his ambivalence toward the Habsburg empire, as a Jew in the crux of emancipation and nationalism. Finally, Katalin Rac introduced us to two people I had never heard of before: the Turkologist Ármin Vámbéry (1832–1913) and the Islamicist Ignaz Goldziher (1850–1921), both of whom were Jewish and whose travels and studies raise interesting questions about the relative liberalism of different empires.

The next panel, Jewish Art and Architecture, opened with Daniel Stein Kokin’s presentation about Perli Pelzig‘s prolific artistic career. Pelzig was a sculptor and muralist, whose work can be seen all over Israel. I’ve seen his gorgeous mosaics in kibbutzim and also at the Dan Acadia hotel in Herzliya and it was so well integrated into the space that it didn’t occur to me to inquire after the artist! But it turns out that Pelzig also designed the wonderful Holocaust Memorial Wall at Los Angeles’s Temple Beth Am, which looks like thousands of fingers scratching, and its complement–Pelzig’s evocative sculpture for Yad VaShem, which features hands reaching upward.

This was followed by Carolyn Beard’s presentation about the crucifixion as a motif in Mark Chagall’s paintings. White Crucifixion (1938) is the most famous among Chagall’s 80 (!) crucifixion paintings and, interestingly, eight of them are self-portraits depicting Chagall alongside a Jewish Jesus, wearing a tallit and sometimes tefillin, and images of suffering Jews. Chagall’s Artist with Yellow Christ is a reference to Paul Gauguin’s picture of the same name (1890), and in Christ with the Artist (1951) he depicts angels on the left of Jesus and Chagall on the right. The cross bursts out of the canvas. In another image, Chagall depicted Jesus’ head as a clock, and replaced the INRI script with his own signature.

Then, Fani Gargova introduced a new framework for analyzing women’s contributions to European Synagogue Design. The tendency among scholars of historical architecture is to regard women’s contribution to synagogue architecture as marginal, considering their location (separate and removed) in the synagogue itself. But it turns out that women played an important role contributing essential artifacts, such as menorot and parokhot, to the synagogues, which have been (mis)analyzed as Judaica objects, rather than as what they are: part of what makes the synagogue a synagogue.

After lunch, I went to a fantastic musicology panel. Gordeon Dale introduced the emerging and wildly successful genre of “Pop Emuni,” presenting artists who are and present as Orthodox and engage openly with biblical themes. We listened to, and analyzed, four songs: Ishay Ribo’s Hine Yamim Baim , Akiva (Turgeman)’s Lekh Lekha, Hanan ben Ari’s Holem Kemo Yosef, and Narkis’ Avi Lo. Despite the sharp polarization in Israel, these artists have been able to break boundaries and enjoy wide public appeal.

Then, Ann Glazer Niren exposed the liturgical roots of Leonard Bernstein’s psalms work. Ann hypothesizes that Bernstein was deeply influenced by Solomon Braslavsky, a gifted musician, who was the cantor and musical director at Bernstein’s home temple Mishkan Tefila. Indeed, Bernstein returned to religious themes in many of his compositions, including Jeremiah, Haskiveinu, Mass, and Kadish. We got to hear excerpts from his Psalms–Psalm 148 (1935) and his Chichester Psalms–and learn about some of the wonderful musical devices he used: echoes of Beethoven’s Pathetique and text pairing (which is a huge part of Bernstein’s genius and which I’ve appreciated every time I’ve sung or listened to his work.)

Finally, Amanda Ruppenthal-Stein introduced us to the Abayudaya Jewish community in Uganda, sharing and analyzing the wonderful polyphonic interpretation of “Ha’Azinu” (Deuteronomy 32).

A great coda to the conference was a panel about gender and queerness in Jewish ritual spaces, which opened with Morey Lipsett’s analysis of the “Agaddic element” in the liturgy at my local synagogue, Congregation Sha’ar Zahav (CSZ). I’m an occasional visitor there (one of my goals in the new year will be to become a more regular attendee) but Morey grew up in the congregation and, relying on Walter Benjamin and Judith Butler, he looks at how the synagogue’s founders and leaders have transformed the Kabbalat Shabbat ritual to encompass dynamic ideas of gender and sexuality, beyond just pointing out the patriarchal aspect of orthodox tradition, and toward creating an affirming and accepting space.

Then, Shlomo Gleibman led us through an investigation of the havruta (a long-term committed religious study partnership) as a queer space, starting with one of my favorite pair: Rabi Yohanan and Resh Lakish, from their erotically charged encounter in the river to what is arguably the most epic, dramatic breakup ever. We followed other havruta queer pairings, in the literature of S. An-sky, I. B. Singer, S. Y. Agnon, Tony Kushner, Michael Lowenthal, and Evan Fallenberg.

Finally, Isabel-Marie Johnston surveyed and interviewed Orthodox and non-Orthodox Jews about their mikvah immersion practices. Her data indicates that the Mikvah offers relief and healing properties to many of the respondents, but especially to those with complicated micro-minority identities: people in intermarriages, people of color, people of complex sexuality, etc. But it turns out that exclusive practices in many Orthodox-run mikvaoth, including innocuous-seeming screening practices, are a real turn-off to these people.

I learned a lot and have tons of wonderful ideas for future research, and feel professionally energized for the first time in many months.





AJS Annual Meeting: Day 2

Another fascinating day at the AJS Annual Meeting, in which I learned a lot – including about issues surprisingly close to home.

The first panel, Holocaust in Art and Literature, opened with Roy Holler’s talk about Yoram Kaniuk’s book Adam ben Kelev and its film adaptation starring Jeff Goldblum. Of all Israeli authors, Kaniuk is one of the most difficult and least accessible for me, so I was grateful for Roy’s take: rather than seeing the book as a story of human-animal transition, he reads it as a story of “passing” across species and of a commitment to avoid joining a species capable of atrocities. As Roy said, “Instead of ‘God created man’, it’s ‘man created himself in the image of a dog.'”

Next, we heard from Angelica Maria Gutierrez  Ravanelli, who studies Argentinian holocaust remembrance and spoke of a graphic anthology called Camino a Auschwitz y Otras Historias de Resistencia. It’s a controversial, edgy, and sometimes queer take on holocaust survival, which draws inspiration from both Maus and Fun Home: the story of a prostitute who dies in the gas chambers; the exploits of a gay partisan and his sexual escapades in the forest; and an ambivalent, conflicted story about Eichmann’s capture. Angelica walked us through the timeline and plot of the stories, the graphic motifs, and the controversy that their publication stirred in Argentina.

The panel ended Anne Rothfeld’s talk about a fascinating investigation conducted by Evelyn Tucker into several wonderful paintings by Egon Schiele. It turned out that Egon Schiele was treated by a dentist called Rieger and, short on cash, paid him in fantastic paintings, including Wayside Shrine, Cardinal and Nun, and Harbor of Trieste (all of which can be found now in the Dorotheum). Welz, a member of the Nazi party, got the paintings from Rieger. Tucker suspected that Welz had flourished by spreading a tale of benefitting from American looters. Welz’s version was that he helped Rieger escape (he had not; Rieger died in Theresienstadt.) Eventually, Tucker was relieved of her position after a conflict with the army. The whole thing was fascinating.

The second panel, Negotiating Danger, Difference, and Death, had assorted rabbinical commentary that I found interesting. The highlight for me was Mika Ahuvia’s talk about Angels in Late Antique Conceptions of Death, because some of the images she analyzed came from sarcophagi in Bet Shearim, which is right next to my home town and where I run when I visit my mom. While rabbinic texts identify only male angels (Michael, Gabriel, Raphael, and Bney ha-Helohim from Enochic texts), piyyut and midrash (Bereshit Raba) identify some feminine angels. And, a sarcophagus image depicts a winged female figure. In addition, murals in the Dura synagogue depict a similar figure descending to the underworld.. Where did it come from? Mika identifies the similarities between the figure and the Greek figure of Psyche (Suke in Greek) and investigates artistic copying and common influences.

Shulamit Shinaar uses lenses from critical and queer disability studies, as well as from medical sociology, to examine biblical and rabbinic prohibitions on, and dispensations for, people with disabilities and their caregivers. She relies on Mike Bury’s concept of “biographical disruption”–the impact of a diagnosis on the person’s now threatened identity, their plans for the future, and their daily life. In light o this framework, Rabbinnical literature views people’s lives as disrupted, including their ability to work, dependency on others, and illness impacting witnesses and legal proxies. This lens explains the exemptions for sick people and for their caregivers: Sabbath, Yom Kippur, and seeking healing using objects that are prohibited (except for the “big three”: avodah zarah, incest, and bloodshed).

Finally, Gal Sela turns to Ta’anit 24a-b to discuss theurgic perceptions in the Babylonian Talmud. The story has to do with Rava, who unsuccessfully tries to bring rain through a fast, and when people complain that in the days of Rabbi Yehuda this was easily done, recurs to explain that the more rigorous learning of this generation is insufficient and that the previous generation had a more direct connection to the divine. We talked about the power of the sage, through the ritualistic act of removing his shoes.

The methodologies that were most familiar to me were in full display at the Haredi sociology panel. I learned a lot! First we heard from Dikla Yogev and Nomi Levenkron, who have studied the Meron disaster using information from government meetings, observations and interviews with the police and the public, and an “urgent ethnography” of online data collection (WhatsApp groups and a website.). The Meron celebration, which became Haredi-dominated from around 2000, raises various problems involving transportation, site management, lost children, and the like. Social network analysis shows that the most prominent people to discuss and address the event were the haredim themselves, including the Meron Committee head and the Holy Sites CTO. Dikla and Nomi conclude that Meron suffers from government instability; the police struggle to establish public safety, which is low on the priority list and managed through a network of informal connections that prioritize Haredi brokers and deprioritize the police.

It was interesting to see this unfold in light of Nomi’s other paper on the panel, hilariously titled “The Father, the Son, and the Holy Spirit,” and recounting the regulation of the 1956 Meron celebration. Her point of departure is that police work in holy places calls for negotiation, which has both symbolic and practical aspects. The three parties to the negotiation wanted different things out of it. The father was Ben Gurion, the prime minister, whose establishment of Israel was accomplished through difficult compromises with the Haredim, and therefore needed to give in to them on the celebration; his son, Amos Ben-Gurion, who was a senior police officer, was concerned about the site’s safety risks and demanded to cancel the event; and the Holy Spirit, the Ministry of Religion, needed the Ultra-Orthodox as part of the coalition. To some extent, the 1956 paper provides an omen/explainer of the 2020 paper.

Miriam Moster talked about the ocioeconomics of Haredi Divorce in New York, which used to be fairly common but is now extremely rare. By contrast to divorcées in the general population, among Hasidim, education and home ownership actually make leaving the marriage easier. Miriam also pointed out that finances tied to the husband, especially in cases where the whole extended family is financially entangled–and especially in illegal/under the table dealings–make leaving more difficult. The fallout of divorce can be harsh from an informal social control standpoint.

Finally, Hannah Lebovits discussed the housing patterns of Haredim in American municipalities, showing how leadership deals with housing and contrasting two models: “housing at all costs” (cutting corners, informal economic workarounds) versus “pragmatic skepticism” (representation, legal cases, civil rights action, etc.) She used the term “ritual urbanism” to describe, among other factors, how some spiritual leaders (“rebs”) of the community present themselves as messengers of God when advocating for spatial design or land use.

I was going to stay for more, but instead opted for catching up with Dikla and Nomi and then had to replace all my bicycle gear, which was filched from my pannier by someone who probably needed raingear and a Narcan kit more than I did (but did he really have to steal my helmet and gloves, too? Grrrr.) Very eager to return to the conference tomorrow!

Association of Jewish Studies, Day 1: Dreyfus Postcards, DEI and Antisemitism, and Daughters’ Inheritance

As hinted in various posts, my big professional pivot has been in the works for a while. This year I started my rabbinical studies at the International Institute of Secular Humanistic Judaism (IISHJ). IISHJ requires all its rabbis to complete an advanced degree in Jewish Studies, which brought me to the Graduate Theological Union’s Richard S. Dinner Center for Jewish Studies. In addition to my full-time work, I’m studying full time for a masters degree, and this week I finished the first semester. My plan is to pivot my scholarship at UC Law SF toward Jewish law and Jewish studies, and I have big plans for fostering and encouraging a vibrant academic Jewish legal experience on campus. After retirement from legal academia, I plan to turn to rabbinical work full time.

Today marks an important milestone: I attended my first-ever annual meeting of the Association for Jewish Studies which, conveniently, is being held in San Francisco. I’m not presenting anything–my two brand-new papers haven’t been submitted for publication yet–and it’s been a great experience to listen, rather than talk! Getting into a new field requires quite a bit of humility, and I confess to being overwhelmed when I visited the huge book exhibit and saw the vast wealth of knowledge and original research. It’s daunting and, at the same time, exciting to join such a prolific enterprise, and I wonder what I can contribute to this flourishing field.

I started my day with a panel on visual representations of violence, in which Louis Kaplan introduced us to the work of photographer John Guttman. Trained as an expressionist painter, Guttman switched to photography when he figured that he would not be able to leave Berlin with money, but would be allowed to take expensive equipment out of the country. He bought a wonderful camera and somehow persuaded a German news agency to be their foreign correspondent in San Francisco… and ended up in a gorgeous apartment in Russian Hill. From Tara Kohn we learned about how archival gaps and absences affect our ability to learn about photography–in this case the work of Alter Kacyzne, who documented Jewish life in Poland in the 1920s and 1930s. Only 700 of Alter’s many photographs are in existence–but evidence of their existence exists in copies and references, as if they were fossils. But the most interesting bit, to me, was Karine Macarez’s presentation of… postcards, posters, and trading cards about the Dreyfus Affair! In my work on true crime podcasts, I always think about Marshall McLuhan’s The Medium Is the Message reminder, but here is proof that participatory, sensationalist true crime engagement–complete with wrongful conviction activism–existed through the creation, sale, and exchange of these postcards, which are rife not only with antisemitic tropes (used both straightforwardly, as in the case of Dreyfus’s maligners, and ironically, by the Dreyfusards) but also with actual forensic evidence: people would buy and collect postcards bearing Dreyfus and Esterhazy’s handwriting.

After lunch, I attended a panel in which Amy Simon (Michigan State), Greg Drinkwater (Berkeley), Nathan Paradise (Minnesota), and Lauren Strauss (American) spoke of their activism–unpaid, emotionally taxing, and exhausting work–to include Jewish concerns and marginalization in the academic curriculum, especially after the Hamas massacre and the eruption of the war. The session was very well attended–standing room only–and offered some thoughts about whether, and to what extent, Jewish issues (including antisemitism) can and should fit in a DEI framework. Lots of useful takeaways, including the huge variation among campuses not only in policies and curricula but also in the interpersonal relationships between the different personages: campus administration, ethnic studies folks (often, but not always, a department devoid of Jewish voices), Jewish studies departments (which are not supposed to be advocacy centers but sometimes become such), Islamic studies departments and colleagues (who sometimes form great coalitions) and the student body (including a big conversation about the extent to which TikTok and the like shape young minds before they even come to college.) It was a great conversation which, while not offering a ton of hope, offered some interesting perspectives and ideas to try, and made me feel a lot less alone than before. I also plan to read Kenneth Stern’s The Conflict Over the Conflict (and will post a review soon.)

I then got to hear a fabulous roundtable about women and biblical law, featuring several interesting projects. Yael Landman, who uses a law-and-literature lens, discussed women’s property rights, especially regarding daughters’ dowries and inheritance; Samantha Rainford, who also studies inheritance roles, highlighted how the the daughters of Zelophechad had to be legally “made into men” in order for their inheritance to fit into the patriarchal lens. GTU’s very own Jennifer Lehmann studies maleness and masculinity in the Bible; as she explains, while men have been the focus of Biblical literature, only recently have they been studied through a gendered lens. She discussed two fascinating examples: Jacob’s sexuality in the Leah/Rachel bait-and-switch, and Joseph’s sexual victimization at Potiphar’s house (including issues of sexual servitude–and comparisons with Hagar.) And Sarah Shechtman discussed embodiment in biblical ritual.

I learned a ton, bought a heavily discounted set of the Bavli with English translation, and I hope made some new friends. Back tomorrow for more!

Hail the Return of the Light with Candles

Next week we will celebrate Hanukkah at my son’s school. We come equipped with David Adler’s The Story of Hanukkah, svivonim (dreidels) and, if we can make the trek to the wonderful vegan bakery, delicious donuts. I read online that many Israelis feel such despair that they have no desire to celebrate the holiday; it is a holiday purportedly celebrating a miracle involving a religious uprising and the parallels and antagonisms to the murderous energies, failed leadership, and dread about what’s coming are too painful.

Perhaps folks might find something psychologically useful and encouraging from an alternative reason to celebrate the holiday, which can be found in Bavli Avodah Zarah 8a 7-8. My beloved high school teacher Aviva Sela (in the picture above) taught me this story as she was battling cancer as we talked about witchcraft, ritual, and encouragement (here is an incredible interview she gave at a radio show, which showcases what a one-of-a-kind person she was.) Leave it to her to imbue the holiday with sensitive psychological meaning. In any case, here’s the story:

לפי שראה אדם הראשון יום שמתמעט והולך אמר אוי לי שמא בשביל שסרחתי עולם חשוך בעדי וחוזר לתוהו ובוהו וזו היא מיתה שנקנסה עלי מן השמים עמד וישב ח’ ימים בתענית [ובתפלה]. כיון שראה תקופת טבת וראה יום שמאריך והולך אמר מנהגו של עולם הוא הלך ועשה שמונה ימים טובים לשנה האחרת עשאן לאלו ולאלו ימים טובים

When Adam the first man saw that the day was progressively diminishing, as the days become shorter from the autumnal equinox until the winter solstice, he did not yet know that this is a normal phenomenon, and therefore he said: Woe is me; perhaps because I sinned the world is becoming dark around me and will ultimately return to the primordial state of chaos and disorder. And this is the death that was sentenced upon me from Heaven, as it is written: “And to dust shall you return” (Genesis 3:19). He arose and spent eight days in fasting and in prayer. Once he saw that the season of Tevet, i.e., the winter solstice, had arrived, and saw that the day was progressively lengthening after the solstice, he said: Clearly, the days become shorter and then longer, and this is the order of the world. He went and observed a festival for eight days. Upon the next year, he observed both these eight days on which he had fasted on the previous year, and these eight days of his celebration, as days of festivities.

One need not be a serious sufferer of Seasonal Affective Disorder (SAD) to respond to the changing seasons with melancholy. The weather, at least here in the Northern Hemisphere, is getting colder; the days are shorter, and our kids cannot play in the playground as late as they would like; we turn our attention inward and dwell on memories past and fears of the future. The horrid weight of the last two months is compounded by the falling shadows in the afternoon; the darkness of the morning adds to the despair one feels trying to get out of bed. Lighting one more candle each day can serve as a psychological reminder that the light will return, and that we can fight even a small part of the darkness outside with a light we carry within.

Yesterday I attended kabalat shabbat at Congregation Sha’ar Zahav. The congregation commemorated the AIDS crisis and the rabbi read out a quote from Tony Kushner’s Angels in America:

This disease will be the end of many of us, but not nearly all, and the dead will be
commemorated and will struggle on with the living, and we are not going away. We won’t die secret deaths anymore. The world only spins forward. We will be citizens. The time has come.
Bye now.
You are fabulous creatures, each and every one.
And I bless you: More Life.
The Great Work Begins.

So it does for all of us in the East and West.

Welcome Home: The Value of a Human Life

The wonderful videos are up and tears are rolling down my cheeks: children hugging their parents, families hugging grandparents. The first hostages are being returned. I wished for nothing more than to live to see these videos and my heart flows with gratitude. I have been watching Ohad Munder’s first hug with his dad again and again, sobbing with joy. But I feel so much inquietude around all this, mostly paralyzing fear for the fate of the remaining hostages. And I fear that some of this dark teatime of the soul has to do with confronting the transactional value of human life.

Recently, I got to read a classic anthropological text from 1923 by Marcel Mauss called The Gift. Mauss marshals evidence from various societies in which gift-giving is common to show that gifts are not spontaneous or selfless; rather, they are surrounded by elaborate social norms that dictate how to give, how to receive, and how to reciprocate. Gifts are an important and thoroughly ritualized social adhesive. At no time is the issue of reciprocity and value-setting clearer than when witnessing a hostage exchange, which makes a transaction out of the gift of human life between parties whose animosity is at its peak. As I read coverage about the Israeli hostages and the released Palestinian prisoners I think, who is being valued more? Whose children are coded as “children” and who are coded as “prisoners,” “Palestinian terrorists,” or “Zionist occupiers”?

The transactional nature of the releases brings into stark relief the range of values that the many stakeholders and parties to this conflict affix to different human lives. A few years ago, I read Peter Singer’s The Most Good You Can Do, where he makes an impassioned argument against parochialism. By contrast to Rashi’s adage that “the poor people of your own town come first,” Singer argues that all lives have the same value and that altruistic giving should therefore eschew parochial considerations and, instead, maximize the good for as many people as possible. I understand, cognitively, what Singer is trying to say, and of course I cognitively comprehend that every life is precious. But I think that, in his admonitions, Singer is being less than responsive to the basic workings of human psychology, which I am observing in my own soul as well as in the souls around me. A Gazan family will be welcoming a released teenager soon with their own joy, adjacent to the Israeli joy but not touching it. The folks online reminding and admonishing and lecturing about how you can feel for both sides are able to host a modicum of generalized warmth because they are not psychologically invested and wound up in one side of this conflict or in another. This is not about who has a heart and who is heartless, but about where people are positioned. And I’m beginning to think that Rashi did not issue an edict so much as offered a description of where people’s natural sympathies flow.

(As an aside, it is such a psychologically bizarre experience to scroll through Facebook posts, finding Israeli and, to a lesser degree, Jewish posters concerned with the fate of the hostages and posting incessantly about them and about the war, while other people post silly memes and their Thanksgiving tables. The folks who post thus are not bad or evil or lacking in empathy. It’s just… not their thing. How many horrific human disasters in faraway lands have I heard about and, while feeling keen sorrow for those involved, moved on with my life, largely unaffected?)

Along these lines: twenty-four people were released yesterday, 11 of which were Thai and Nepalese workers. What a heartache, to be thrusted into the heart of hell in a conflict unrelated to you, because you had to move away to a far away land to make a living; to find yourself caged and tortured, caught between parties in a war zone. Initially, their names and pictures were unavailable, anonymous in captivity and in liberty as they were when trying to make a living in a cruel global economy. This morning I finally saw their picture. I was so moved to see Jimmy Pacheco’s release and how he was embraced by kibbutz members. The man for whom Jimmy worked as a caregiver, Amitai Ben-Zvi, was murdered by Hamas, and Jimmy was kidnapped and manhandled with horrific violence. The world devalues the lives of foreign workers so systematically and deeply. The hug between Jimmy and members of the Ben-Zvi family was a balm to my heart.

And then there are the lists. A huge, painful, never-healing wound in Jewish history involves the Judenrat’s listmaking in ghettos, making horrifying decisions on who must be saved and who must be shipped to the east to be murdered in concentration camps. It is really hard to reckon with the fact that people’s demographics play a horrifying role in setting their price in hostage exchanges. I wake up nightly from horrible nightmares involving the toddlers in captivity, especially baby Kfir Bibas, and shudder when I consider that the monsters who hold them captive understand the psychological value we affix to children. As my beloved late colleague Sherry Colb and her husband, Michael Dorf, wrote in Beating Hearts, there is a special premium on the lives of children. And at the same time, there is a frailty to aging people (which I addressed in several of my works). And I’m so moved by the return of the brave, stoic grandmothers, many of whom lost husbands to sadistic murderers. But this also means that the precious lives of young men are going to be devalued by comparison, and that they will have to withstand captivity longer, and I worry that the calculus of the worth of human lives versus military objectives will change as the war rages on.

Speaking of Colb and Dorf’s book, I also think a lot about the lives of animals brought into this homo sapiens conflict. One brief clip from the horror footage of October 7 keeps sawing through my mind: the murderers and kidnappers drive a truck away with hostages on it, weeping. The family dog chases the truck, barking, running, trying to save his family members. And these evil monsters shoot the dog dead. Why? WHY?! Why the dog? What does the dog have to do with any of this? Is the dog a Zionist occupier? I think about all the families who had to make the tough decisions to leave their dogs and cats outside their safe rooms and shelters. Family members whom they loved and cherished, like we love and cherish Inti and Gulu. What a thing to confront and to reckon with. They were trying to save their children’s lives, their parents’ lives. What choices people have had to make. And what complicated feelings to process amidst the layers of horror and grief.

I’m sure I’m not the only person who is confronting complicated and uneasy feelings about all this. What makes me feel a bit better, a bit more inspired, is an amazing statement made by Yoni Asher, whose wife and two daughters were returned from captivity yesterday. Asher says: “It is okay to rejoice and it is okay to shed a tear, but I am not celebrating and will not celebrate until the last of the hostages returns.”

May we live to welcome them all home.