On May 23 2011 several prominent Orthodox Jewish organizations issued a joint statement declaring their opposition to legalizing same sex-marriage. The brief statement is as follows:
On the issue of legalizing same-sex marriage, the Orthodox Jewish world speaks with one voice, loud and clear:
We oppose the redefinition of the bedrock relationship of the human family.
The Torah, which forbids homosexual activity, sanctions only the union of a man and a woman in matrimony. While we do not seek to impose our religious principles on others, we believe the institution of marriage is central to the formation of a healthy society and the raising of children. It is our sincere conviction that discarding the historical definition of marriage would be detrimental to society.
Moreover, we are deeply concerned that, should any such redefinition occur, members of traditional communities like ours will incur moral opprobrium and may risk legal sanction if they refuse to transgress their beliefs. That prospect is chilling, and should be unacceptable to all people of good will on both sides of this debate.
The integrity of marriage in its traditional form must be preserved.
This statement was issued not only by Orthodox institutions considered “right-of center” such as Agudath Israel of America or National Council of Young Israel, but also by more moderate Orthodox organizations such as the Orthodox Union (OU) and the Rabbinical Council of America (RCA).1 Unlike most religious proclamations which are directed towards specific religious communities, this joint statement advocates a political position – though based on religious principles – to the secular world beyond the normal scope of religious influence. To be sure, this joint statement is hardly the first time rabbinic organizations have issued political statements. Across all major denominations, the Orthodox RCA, Conservative Rabbinical Assembly, and Reform Central Conference of American Rabbis have all passed resolutions advocating public polices exemplifying their respective religious beliefs, with few (if any) complaining about the separation of church and state.
But due to the inherent subjective moral arguments against same-sex marriage, I argue that Jews – especially the Orthodox – would be better served in not opposing its legalization.
As I understand the joint statement, the argument against legalizing same-sex marriage is based on two approaches: 1. a general moral objection to redefining marriage and family and 2. the implications of legalizing same-sex marriage would necessitate for Orthodox institutions. I will discuss each of these arguments in turn.
To understand the moral objection, we must first need to consider the prohibition of homosexuality in Judaism, not as it relates to Jews as I have discussed extensively elsewhere, but Judaism’s expectation of non-Jews. According to the Jewish religious tradition, homosexuality would be prohibited for non-Jews under the Seven Noahide Laws, specifically regarding forbidden sexual relations:
Our Rabbis taught: seven precepts were the sons of Noah commanded: social laws; to refrain from blasphemy, idolatry; illicit sexual relations (mistranslated specifically as “adultery”); bloodshed; robbery; and eating flesh cut from a living animal (T. Avoda Zara 9:4, B. Sanhedrin 56a) [Emphasis added]
In addition to prohibiting certain relations, the Jewish religious tradition additionally abhors the act of sanctifying homosexual relationships through the act of marriage, even for non-Jews:
What did they [the Canaanites and Egyptians] do? A man would marry a man, a woman would marry a woman, a man would marry a woman and her daughter, and a woman would marry more than one man. For this it is written, “do not follow their practices” (Lev. 18:3) (Sifra Acharei Mot 9:8).
Ulla said, “these are thirty commandments which the children of Noah accepted upon themselves, but they only kept three of them: they did not write marriage documents for two men (i.e. legitimize homosexual marriage), they did not eat human flesh, and they honor the Torah” (B. Hullin 92a-b).
Despite the joint statement’s disclaimer that “we do not seek to impose our religious principles on others,” it is simply disingenuous not to assume that the moral arguments are motivated in religion. Indeed, the 2007 statement said as much explicitly:
We approach this issue through the prism of the Jewish religious tradition, which forbids homosexual acts, and sanctions only the union of a man and a woman in matrimony.[Emphasis added]
The current statement notably removes such overt religious motivations. But while it removes religious language, substituting “sanctity” for “bedrock,” the statement still fails to provide any justification for its proposition that “discarding the historical definition of marriage would be detrimental to society” without resorting to some form of religious morality. Unlike other controversial positions on abortion, environmental regulations, economics, or foreign policy which may all be defended by both religious and secular arguments, there does not seem to be a moral objection to same-sex marriage which is not somehow based in a religious tradition.
Of course, religious organizations have their legal right to advocate or oppose any policy which contradicts their religious beliefs, but I suggest that it is unwise if not hypocritical for the Orthodox to do so. The United States offers unprecedented and unmatched freedom for Jews to practice their religion,2 and I suspect these rabbinic organizations would contest any attempts to curb those freedoms. For example, male circumcision is an essential practice in the Jewish religion. Yet San Francisco and Santa Monica are both considering banning circumcision without providing religious exceptions. Circumcision opponents no doubt rely on their own subjective morality to impose their ethical standard in restricting the rights of others. I would expect that Orthodox religious organizations would no doubt view such a bill as an affront to their freedom of religion.
For another example, consider the laws pertaining to kosher meat. For an animal’s meat to be considered kosher according to Jewish law, it must be slaughtered through the process of shehita. Some animal rights activists oppose shehita as being inhumane and several countries have already proposed or passed legislation restricting the practice on moral grounds. Given that the Orthodox Union receives most of its funding through issuing kosher certifications, I suspect they would oppose any restrictions on shehita, even if based on the moral standard of ethical treatment of animals.
My point here is simple. Orthodox Jews who benefit greatly from the freedom to practice their religion should in no way impose their religious beliefs on others. Conversely, when a religious group seeks to restrict the rights of others based on its religious morality, it cannot contest when its own practices are threatened on the grounds of secular morality.
Aside from the moral objections to same-sex marriage, there appears to be a practical concern amongst these Orthodox institutions. Were same-sex marriage to become legalized, the Orthodox community “will incur moral opprobrium and may risk legal sanction if they refuse to transgress their beliefs,” though the joint statement provides no further elaboration or explanation. As noted above, the Orthodox Jewish community has successfully defended itself against other instances of “moral opprobrium” from secular moralists, and advocates for gay rights will continue to challenge the morality of the Orthodox position regardless of the legality of same-sex marriage.
I am also skeptical as to what “legal sanction” the Orthodox community may incur if same-sex marriage is legalized. If it refers to discrimination in hiring, Title VII of the 1964 Civil Rights Act provides exemptions for religious organizations:
2. Are there any exceptions to who is covered by Title VII’s religion provisions?
Yes. While Title VII’s jurisdictional rules apply to all religious discrimination claims under the statute, see EEOC Compliance Manual, “Threshold Issues,” http://www.eeoc.gov/policy/docs/threshold.html, specially-defined “religious organizations” and “religious educational institutions” are exempt from certain religious discrimination provisions, and a “ministerial exception” bars Title VII claims by employees who serve in clergy roles.
Religious Organization Exception: Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious.” Factors to consider that would indicate whether an entity is religious include: whether its articles of incorporation state a religious purpose; whether its day-to-day operations are religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether it is not-for-profit; and whether it affiliated with, or supported by, a church or other religious organization.
This exception is not limited to religious activities of the organization. However, it only allows religious organizations to prefer to employ individuals who share their religion. The exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability. Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races.
Ministerial Exception: Courts have held that clergy members generally cannot bring claims under the federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act. This “ministerial exception” comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority. The exception applies only to employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction. Some courts have made an exception for harassment claims where they concluded that analysis of the case would not implicate these constitutional constraints.
I am not a lawyer, but it does appear that a religious organization could be allowed to discriminate on the basis of sexual practices which violate its religious doctrines.
But perhaps the concern is that in hiring a gay employee, an employer would then be legally forced to support his or her spouse thereby obligating Jews to actively financially support a lifestyle which runs counter to their religious beliefs. However, the same argument could be made for any employee who does not adhere to the Jewish faith – including any non-religious Jew or even non-Jews. To the best of my knowledge no Orthodox Jewish organization is similarly concerned for their employees abstaining from the other biblically defined sexual “abominations” such as niddah or adultery.
Finally, even if same-sex marriage were to become legalized no rabbi would be obligated to officiate such a union. In my professional capacity, I have the freedom to decline to perform any marriage for any reason just as a couple is free to seek another officiant. Legalizing the rights of gays to marry in no way infringes on my rights as a religious Orthodox Jew.
To be clear, not opposing legalizing same-sex marriage is not the same as actively supporting it. It is my personal opinion not to support it due to my religious beliefs, but also not to oppose it due to my political belief in the freedom of religion. Were same-sex marriage to become legalized, I would not officiate any same-sex union. That is my right and freedom as an American to determine for myself the moral code by which I choose to live, even if it is based on a religion with which you disagree. Unless I can provide evidence or compelling arguments that an action causes harm, I cannot in good conscience deny that same right to others.
1. In the interests of full disclosure, let me state that like many congregations my synagogue is an OU member shul, and I am personally a member of the RCA and even presented at its most recent convention two weeks ago. However, the OU’s national position does not necessarily reflect the attitudes of all of its member synagogues, and, as this essay demonstrates, the RCA’s approval does not speak for all of its members.
2. This includes even Israel where the Israeli Rabbinate wields political power to impose its own religious standards on the general population.
You captured nicely the tension I felt over the earlier statement. On the one hand, freedom is directly good for the Jews. On the other, homosexuality is a push away from God, which we ought to oppose. I tend to lean the same way you do, but that’s just a gut feeling.
Rabbi Josh,
You are good person, a learned Jew and a great guitar player. That is all wonderful and you should keep growing greater.
Nonetheless, I do not think it is wise to take on the Rabbi’s who run these organizations. They are older, wiser and have much bigger shoulders than you or I.
They have eyes that can see results of their positions much clearer than then the average person.
I would suggest to humble yourself before our sages and just accept their decision. You can be certain that all of your thoughts on this issue were considered and that all of the angles of this issue were clear before this statement was made.
This is an issue that has very deep ramifications for all of society and it is one best to be left to our sages. Sometimes their words and ideas are beyond our current comprehension but if you could fast forward to the future you would see the wisdom in their words.
May G-d bless you with all good things,
MC
Emes Rocker,
I can’t tell if you are writing sarcastically or not.
If not, then here is what I say: just because a person is called a rabbi, and has many followers, does not make him “right” about anything. Every idea and position must be examined on its own merits, not blindly accepted because of who said it. You argue the opposite: do what person X says because he is person X. The substance of person X’s statement is irrelevant.
If you had listened to the clairvoyant sages of Eastern Europe who told their followers to stay put and learn before WWII, you would have met the same fate as they did. What makes you so confident that these unholy rabbis will be “right” in the future?? Have you seen the future? Or is that simply how you justify your worldview in light of the mountains of observable evidence against it?
Your sheep mentality is repugnant to the dignity of human reason.
Hi Yankl,
I was not writing sarcastically at all.
I am just a believer in the concept of Emunas Chochomim, faith in the Sages.
When major issues are out there it does not at all contradict human reason to consult with the leading Rabbonim of the time. Do I claim to personally know everything? Even the President of the US has his cabinet whom he consults with on all issues. No one has a monopoly on knowledge. If someone has a major medical issue, do they just research the issue on their own or do they consult the leading physicians in the field? Therefore when big issues are confronting the Jewish people we have our Rabbonim to ask.
When all the major Orthodox organizations agree on a certain issue, I think that you are in very good hands intellectually. This total agreement does not occur on every issue. On this issue we have a clear answer as all groups agree.
I would not dare have the chutzpah to voice a differing opinion even though I am very smart and have been learning Torah many hours per day for the last 20 years. I know my place and I trust people who are bigger than me.
That is not blind faith. Rather it is a well developed understanding of human reason and simple humility.
G-d bless you,
EMES ROCKER
‘What did they [the Canaanites and Egyptians] do? A man would marry a man, a woman would marry a woman, a man would marry a woman and her daughter, and a woman would marry more than one man. For this it is written, “do not follow their practices”‘
Except that they did not. We know lots about what they did do — brother/sister marraige, sacrificing children to their Gods, temple prostitution, but there is no record I’ve ever seen of any of these. The society that DID embrace homosexuality was ancient Greece and yet the sages of the Talmud said nothing about it. (There is also some evidence that one or two particularly decadent Roman Emperors staged a same sex marriage, but in general the Romans were pretty homophobic, preferring heterosexual adultery on a massive scale.)
“In keeping with its long-standing traditions and policies, Yeshiva University considers students, employees, applicants for admission or employment, and those seeking access to programs on the basis of individual merit. The University does not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, national or ethnic origin, age, disability, veteran status, genetic predisposition/carrier status or other protected classes under the law. Such discrimination is unlawful.”
http://www.yu.edu/humanresources/index.aspx?id=28974
Emes Rocker: You still assume that “the leading Rabbonim of the time” know anything about anything besides what’s in their ancient books of rituals and customs. Why do you assume that? Why do you believe in “emunas chachomim” in the first place? Because someone told you to believe in it, or because you have some independently verifiable reason to believe in it?
It’s nice that you consider yourself “very smart.” I guess if I claimed to be “very very smart” I would win this argument.
Charlie Hill: the Romans were not “homophobic” in the way we imagine. The Romans had an idea of manly sexual morality they referred to as “pudicitia” which basically meant that if you had a penis, you had it stick it in something. That something could be a woman or a man, so long as you weren’t the one being penetrated. I.e. a man could sleep with a man so long as he was the “top.” It was all about the perceived masculine “virtues” of power and control.
(Incidentally, it was also considered unmanly and effeminate to perform cunnilingus. Men performing cunnilingus were described in terms of being penetrated by the woman.)
Yankl
The simple answer is: I believe in emunas chachomim because I believe that the Torah is true and it tells us clearly to follow the advice of the sages. Nothing to hide. That is my intellectual conclusion after many years on this planet.
If you would like to discuss it more, please feel free to contact me.
There is an even bigger issue you’re getting at. I don’t think the religious leadership should be informing people on politics or political issues to begin with. As they say, politics make strange bedfellows. And because there is that separation of church and state, the “church” needs to be careful how it relates to the state. The most dubious relationships are the alliances formed by political and religious bodies.
Emes Rocker: I don’t know who you are, and therefore cannot contact you.
However, you say that you have come to the conclusion that you believe in Emunas Chachomim because (1) the Torah tells us to follow the advice of sages and (2) you’ve been alive a long time.
(1) Assuming that it were clear that “the Torah” (chumash? nach? talmud? shmuly boteach?) did tell us to “listen to the advice of the sages,” what sages is the Torah talking about? The sages of the time? Or anyone clever and politically savvy enough to gain a following among a certain devout segment of Orthodox Jewry? What are the criteria for sage-ship? Seems like it’s based on consensus.
(2) Lots of people have been alive for a long time, and have reached different conclusions than you. In fact, most people have. So, what did you experience that lead you to your conclusion?
Both reasons you gave for your belief in EC are specific to you. I asked for independently verifiable reasons. If the basis of your belief cannot be independently substantiated, why are you imposing it on other people, trying to muffle the voices that don’t jive with your individualized worldview?
Rabbi Josh,
It was a pleasure reading your comments regarding this issue. I am a gay man who lived an Orthodox life for several years before recognizing and accepting my sexual orientation and realizing that I could not be fully accepted both as gay and frum. I wish your shul was in LA; I’d have to stop by.
I agree with MC, that this is a very difficult issue, but diverge from there. I feel our current gedolei haTorah are painfully out of touch with society, and even with Yiddishkeit these days. The bans hurled at the religious community by these leaders over the past few years speak not of a deep understanding of Torah and a forward-thinking approach to societal woes, but rather to a far right, reactionary desperation to retain power.
Your logic is clear and direct. You can’t abhor the freedom of others to live and practice as they choose, and yet simultaneously demand such freedoms for yourself. My personal suggestion is bifurcating religious and secular marriage; they should be two clearly distinct things. The state has no right to tell any religious institution whom they may or may not marry (as is currently the case), and no religious institution should have any power to tell the state the same. If the religious demand no gay marriage, they should fight for the removal of all marriage benefits from the legal code. If there is no legal benefit to marry, it doesn’t much matter who may or may not do so.
Thank you for standing up and speaking your mind. With more thoughtful Rabbis like you, perhaps the gay youth in our shuls might one day still feel at home and safe, and perhaps they’ll stick around, as I did not.
Dear R’ Josh,
I happen to agree with you that as religious Jews we should keep out of such ‘fights’ which take place already between the church and state. However, I do believe that the organizations which did sign on it, did not do so without taking the ramifications for doing so lightly. I have had the opportunity of coming into contact with quite a few of the leading members of all of the signed organizations, and contrary to what others have commented, are very aware of the implications of their actions. I cannot find it at the moment, but as R’ Moshe wrote in regards to Abortion, that frum Jews should stay out of it and let the goyim fight it out themselves. I do not know what the impetus was for these organizations tossing their hat into the ring, nor do I believe that it is the smartest thing to do. However, its possible even probable, that they are aware of certain aspects which have not deigned on you or me.
all the best
Harryer
As I have often said:
I consider myself married to my wife because of the ketubah on our wall, and not because of the marriage license we got from the State of NJ.
Let the state continue to marry mamzerim and inter-faith couples and agunot and any other kind of couple that consents. The state cannot effect kiddushin, and cannot force the religious community to effect kiddushin that are not ke-halacha. They are two different things, and should not be confused.
MAK:
I think the point of objecting is not regarding what marriage means to us, but what impact same-sex marriage has on society.
I think you’re seriously misreading the Title VII FAQ when you claim that religious organizations will still be allowed to discriminate based on their view of marriage. The FAQ that you quoted says:
“This exception is not limited to religious activities of the organization. However, it only allows religious organizations to prefer to employ individuals who share their religion. The exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability. Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races.”
Gay marraige will almost certainly fall under the part of this FAQ that says “The exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability. Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races.”
That would already be the case. The only change with regard to that is that the gays already protected by Title VII could now be married.
Yankl my friend,
I could explain all of my thought processes on what I wrote but it would take many hours and days. Not exactly something I can just post on a blog.
If you want to study Torah perhaps we can set up a time to learn over the phone.
I will be glad to go through all the thought processes both historically and in contemporary times that have led to my conclusions.
Here is my email if you want to talk mitchcohen123@gmail.com
Peace and love to all!
FYI, the practical reason they’re opposed to it is because of concerns over hiring/firing. While the 1964 Civil Rights Act does indeed provide a religious exemption, as you state, that is not the only relevant legislation.
Most important to New York-based organizations are city and state non-discrimination legislation that do not provide religious exemptions. Many other municipalities and states have similar laws, but clearly New York is of concern enough to these organizations, which are, in fact, all based in New York City.
While you may not “seek” to impose your religion on others. You are. I’m gay. I couldn’t care less what the Torah says about anything. Pray to your Torah, only perform heterosexual weddings and hell, dont’ even let gay people enter your holy, holy temple. But don’t deny me the same rights you have. Didn’t the holocaust teach you anything about human rights?
Hey Emes Rocker–Youre a believer in Emunat Chachamim? Like when they said to kill lice on shabbat because they spontaneously arise, or like when they said that the olives of the old days were the size of half an egg? Or maybe when they said that the earth was flat or when Rabbi Akiva believed that Bar Kochba was the moshiach? Chachamim are people whose words and opinions are not necessarily the words and opinions of Gd.
where does the torah tell us “clearly” to follow the advice of the sages? You are heavily mistaken. It is the sages which tell us to follow the advice of the sages… about as circular as it gets. Read the torah carefully, it says no such thing as what you claim.
You are repeating a mistaken understanding of emunat hachamim. It does not mean faith in our sages, rather faith OF our sages. Which make a huge difference in your corrupt understanding of our jewish religion promulgated by the Franco German tradition from 1000 years ago
I think Rabbi Yuter should expand on the meaning of “oppose”. I mean, there’s “oppose” and then there’s “OPPOSE”. I wonder if he’d agree with those who oppose the gay marriage *quietly*.