Why This Orthodox Jew Supports the Supreme Court’s Decision on Gay Marriage

Dear Josep,

You are not on Facebook, so you didn’t witness this phenomenon: this morning my feed was divided between those with a “rainbow-fied” profile picture, and those without. As you probably heard, the Supreme Court of the USA made a historic decision last week, making gay marriage legal throughout the United States.

I did not change my profile picture, because I can’t really say I “support gay marriage,” but I do support marriage equality, and in my heart, I am happy for them.

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Homosexuality is a very tough issue in Judaism. The Torah explicitly forbids sexual intercourse between men. So as a rule, Orthodox Judaism is “against” homosexuality in that we believe it–or at least the consummation of a male homosexual relationship–is forbidden by God. But if you break this down, it becomes a lot more complex. The Torah’s statement doesn’t apply to women, and the prohibition against female homosexuality is totally rabbinical. Is it really a statement on homosexuality in general, or just on that one act of consummation, or even just on that one act in the context of idol worship? It seems clear to me that the original intention of the text, especially in calling it an “abomination”, was referring to pagan rituals, not to a loving relationship between consenting adults.

This is one of the issues that really tests my faith. Why would God create people with an attraction to the same sex, and then forbid them from ever acting on it? That just seems cruel to me. I don’t know why God would do this. This is not the only issue on which the Torah seems to demand an incredibly difficult sacrifice–not impossible, but one I am very grateful I have never had to face. So while I do believe in the Torah, and believe that for reasons I don’t understand, God created this very difficult situation, I cannot but empathize with those who struggle with it, and completely understand if they fail to live up to the Torah’s standards on the matter.

The truth is that I think the discomfort in the Orthodox community is less about the Torah prohibition and more about stigma. Yes, the Torah forbids homosexuality in severe terms. It also forbids eating shellfish or pork, working on the Sabbath, and eating on Yom Kippur in very severe terms. And yet we do not treat people who don’t keep kosher or Shabbat with suspicion or disgust; we don’t reject them from our communities; we don’t get upset if a democratic country makes a law that makes it legal to work on Shabbat or sell shellfish. So what business is it of mine whether it is legal for a man to marry another man, or a woman to marry another woman? Some might argue that it “lends legitimacy” to something that we think is wrong. I think this is trying to bar the door after the horse is gone. The Western world already sees marriage equality as a progressive value. Game over.

Maybe instead of concerning ourselves with whether a pair of people is allowed to sign a paper in a courthouse and call their union a marriage, we should be thinking about how to accommodate the needs of the members of our own communities who struggle with this issue, and figure out how we can offer them better choices. Some of them choose to raise traditional families despite their sexual orientation. We should help them achieve this if that is what they wish. Some of them choose to stay in the religious community despite the fact that they cannot fulfill this particular commandment. That should be their right, and it is no one else’s business what goes on in their bedrooms, any more than it is anyone else’s business whether a couple keeps the laws of family purity. In any case, we should not force them, as a society, to live with secrets or shame because of their sexual orientation.

Can we, the Orthodox Jewish community, enshrine homosexuality and call it a marriage according to our beliefs and values? No, we can’t. Can we say it’s not a sin according to our beliefs? No, we can’t. We can’t, and shouldn’t be expected to, compromise our beliefs. But we can have compassion and empathy for homosexuals. We can let people know that if they struggle with this it is not their fault, and that we all fall short of the standards the Torah demands of us sometimes, and that while we think the “right” thing to do according to the Torah would be to act against their orientation, we know how difficult and painful and harmful that might be, and we understand if they can’t do it. We can try to help them live fulfilling, happy lives and feel a part of the Jewish community despite this struggle.

I think from the perspective of the state, marriage is not about religion or love–it is about legal rights. Therefore, I don’t think it makes any sense for gay marriage to be illegal. We can argue from now until next Tuesday about what marriage is and what it means and whether gay marriage fits into that category. But that’s not what this whole thing is about. This is about legal rights. And everyone should be equal under the law. And just as the race or religion of each member of a couple shouldn’t make any difference from the perspective of the law, their gender shouldn’t make any difference either. I don’t think it has anything to do with religion. It says absolutely nothing about what marriage is according to this church or that synagogue or the other mosque. That is a different matter entirely.

The Orthodox Union released a statement on the topic expressing a concern about balancing the new law with protecting the religious freedom of institutions for whom gay marriage is not possible or compatible with their beliefs. That is the part of their statement that I very much agree with and think should be addressed in all states. (I have, shall we say, reservations about other parts of it.)

At the end of the day, I see the Supreme Court’s decision as a victory for a country that strives to grant equal rights to all its citizens. And I am happy for the couples who will now be able to enjoy the legal rights they deserve. And I wish them all the joy in the world. And I will keep loving and believing in the Torah and the Orthodox interpretation of it–and asking God tough questions about it, knowing that there are no easy answers.

Love,

Daniella

14 thoughts on “Why This Orthodox Jew Supports the Supreme Court’s Decision on Gay Marriage

  1. Daniella, I think that what irks people the most is defining the relationship legally as a “marriage”. 2 consenting adults can call their relationship anything they want however for the USSC to mandate that all 50 states acknowledge the legitimacy of homosexual marriage is UNCONSTITUTIONAL and has ramifications well beyond just allowing tax breaks, insurance benefits, etc. There is another way to ensure those benefits and that is a the entity known a domestic partnerships. Just like any corporation, entity, the partnership (legal) has built into it protection to each of the parties involved. Love has nothing to do with. Love is between the 2 people involved and not determined by the courts. The courts job is to uphold the legal instrument protecting the partnership. I love the example my daughter Penina Taylor gives. Her sister is divorced with 5 children. There was a time when she moved into Penina’s house. If, G-D forbid, something had happened to Penina’s spouse (he should live a long and healthy life) and she found herself to be a single mother, they might have continued their housing arrangement. Did the sisters love each other ? Yes. Did they want to marry each other? Heck NO! Could it have been reasonable for one of them to stay home and run the household and care for all the children while the other one worked and brought home a decent living? YES. Would it have been prudent to have the non-working sister plus all children on the working sister’s insurance and get all the tax benefits due any other couple? ABSOLUTELY! They form a domestic partnership (already on the books) and not a marriage. And like you said, We don’t want to know what happens (or doesn’t happen) behind the bedroom doors, And so it is not the government’s business either. By legalizing same-sex marriage in the guise of equal rights is a gross injustice for all.

    Kol Tuv, Miryam

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    1. I hear that, and I still think it should make no difference, because I think homosexuals should have the choice to define their relationship however they would like, and that that doesn’t necessarily have any effect on how others might define it. Most marriages in the USA don’t fall under my definition of a Jewish marriage. Probably most *Jewish* marriages in the USA don’t fit my criteria. That doesn’t give me the right to tell them that their union isn’t a marriage.

      In other words, I’m also uncomfortable calling it a “marriage”, but I don’t think there’s any reason they shouldn’t have the right to call it that.

  2. Hello Daniella,

    I fully agree that the issue of homosexuality in Judaism is a tough one. I think that at this pivotal moment in American history, when such an emotional issue is being addressed in the public forum, it is important for people to keep their heads about this. I am not directing this at you, but rather making a general statement to anybody who has thought about this issue. It seems that as of recent, people who come out saying that they oppose gay marriages on religious grounds are putting themselves out on a limb. In the worst case scenario, they are viewed as compassionless bigots. I would urge anybody with strong views on this topic to avoid this stereotype. It must be said that religious individuals, and this would include Orthodox Jews, have the right in a free society to hold their views. And if their views are that homosexuality is a sin, then they have the right to hold those views without the pressure of compromising their faith to please any sector of society.

    Having said that, as religious people, and as Orthodox Jews, we as well have the general obligation to uphold compassion for all people, and that includes those who consider themselves homosexual. However, this does not mean, under any circumstances, that we are forced or force ourselves to concede that part of the Torah which says that homosexuality is an abomination. We may not express verbal or physical violence against people who say that they are gay, but we may retain our faith in the doctrine that homosexuality is but one sin out of a larger body of sins delineated in the Torah. And we don’t need to feel bad about it either.

    Regarding that “the prohibition against female homosexuality is totally rabbinical” does not mean that is isn’t binding. That would make it just like lighting Shabbos candles, wearing tefillin, or performing kosher slaughter, neither of which are defined explicitly in the Written Torah.

    You made an interesting statement: “It seems clear to me that the original intention of the text, especially in calling it an ‘abomination’, was referring to pagan rituals, not to a loving relationship between consenting adults.” It does seem true that the rationale given in the text of the Torah for not performing these acts is related to idolatry. (Leviticus 18:3). We should not overlook what Rashi says on Leviticus 18:4, which says, “You shall fulfill My ordinances and observe My statutes, to follow them. I am the Lord, your God.” The subsequent list of practices is expressed in terms of fulfilling מִשְׁפָּטַיand חֻקֹּתַי.

    Rashi also follows with “These are the ‘King’s decrees’ [without apparent rationale to man], against which the evil inclination protests, ‘Why should we keep them?’ Likewise, the nations of the world object to them.” I am simply trying to point out that this seems like a relevant point for this topic.

    You also brought up the concern of, “Why would God create people with an attraction to the same sex, and then forbid them from ever acting on it? That just seems cruel to me. I don’t know why God would do this.” To some degree this can be applied to many things that Jews are restricted from. For example, neither men nor women are allowed, by the Torah, to act in any sexual way they prefer. Many, many men, I imagine, struggle with the prohibition of spilling seed, which is a very powerful drive. Is it also cruel of God to prohibit that? Many atheists and agnostics jest at Judaism for this, and other, reasons. I agree that we should empathize with the struggle of homosexuals, but should also try to see the bigger picture.

    You said, “And yet we do not treat people who don’t keep kosher or Shabbat with suspicion or disgust; we don’t reject them from our communities; we don’t get upset if a democratic country makes a law that makes it legal to work on Shabbat or sell shellfish.” Well, some people do, but that’s beside the point. The reason that the homosexuality issue is getting so much fanfare is because of two reasons. I would have said that one reason for the severity of the religious opposition is the attitude of brazenness associated with this battle. Due as well to the sensitive nature of the sanctity achieved in a marriage between a man and a woman, this issue is seen as representing a host of other issues. It is most likely for that reason that it generates such a fierce response from both sides of the fence. Eating shellfish and pork and even violating the Sabbath is one thing, but violating the natural element of the accord between a man and a woman is quite intuitively another. So I think it’s more than just about a stigma. That argument can be used to make Orthodox Jews seem close minded, but the concern runs deeper than a mere stigma and it has to be recognized as such.

    You said, “we should be thinking about how to accommodate the needs of the members of our own communities who struggle with this issue, and figure out how we can offer them better choices. Some of them choose to raise traditional families despite their sexual orientation.” I do agree with that, and I think such institutions do exist.

    You also said, “We can let people know that if they struggle with this it is not their fault, and that we all fall short of the standards the Torah demands of us sometimes, and that while we think the “right” thing to do according to the Torah would be to act against their orientation, we know how difficult and painful and harmful that might be, and we understand if they can’t do it.” The battle for the establishment of homosexuality isn’t concerned falling short of standards, it is a sense of entitlement stemming from disregard for those (particular) standards. I’m not talking about religious gay people who are caught in this bitter middle ground, I’m talking about people who couldn’t care less about what religious people think and believe. That’s a real serious problem. Some of those people want to see religion go the way of the dodo as a whole.

    To close, you said, “We can try to help them live fulfilling, happy lives and feel a part of the Jewish community despite this struggle.” Should we afford the same rights for a man or woman who wants to commit adultery?

    1. Hi Yaniv, thanks for your thoughtful response.

      I agree 100% that because something is rabbinical, doesn’t mean it’s not binding, or even *less* binding; however, when you have to be lenient about something, it is much preferable to be lenient on a rabbinical halakha than on a Toraidic one.

      As for “cruelty”–I do not believe that God is cruel, and that is why I struggle with it. Like I said, this is not the only issue in which I think the Torah makes near-impossible demands on us. Spilling seed is a big one that I debated whether to bring up here. For most mature, unmarried men, it is virtually impossible to keep it. That doesn’t mean they shouldn’t try, but it does mean they should know that they are not alone in their struggle with it.

      I still think that at the end of the day the difference between eating shellfish and being homosexual is mostly a social difference and not a halakhic one. Yes, it is more complex than kashrut is–*now*. Because we are used to Jews eating shellfish. Once upon a time, seeing a Jew eating shellfish was shocking and provocative and would make religious Jews very upset. Is it bad or good that we no longer have this reaction? I think the answer is not simple at all.

      “I’m not talking about religious gay people who are caught in this bitter middle ground, I’m talking about people who couldn’t care less about what religious people think and believe. That’s a real serious problem. Some of those people want to see religion go the way of the dodo as a whole.” 100% with you there.

      As for your final question, there is a fundamental difference between homosexuality and adultery: in the latter case, it is hurtful to another person. I think we should afford the opportunity to live fulfilling, happy lives and feeling a part of the Jewish community to anyone, regardless of their failings or shortcomings, unless they are engaged in behavior that is hurtful and dishonest. Homosexuality is neither.

      I know that there is a tension here between the values of the Torah and the feel-good liberal values of modern humanism, which often overlap, but not always; and as Orthodox Jews we choose Torah over humanism, even when it doesn’t “feel right”, on the belief that God knows better than we do, and that what “feels good” now might be morally repugnant in 50 years, because society’s sense of morality changes. As modern Orthodox Jews, we are constantly navigating this tension. The point of my post was not that as a community we should grant legitimacy to gay marriage; it was that the Supreme Court’s decision doesn’t really have anything to do with us. We don’t have to grant legitimacy to homosexuality; we can extend compassion to homosexual people, and keep searching for a way to reconcile the Torah view with that compassion.

      1. Hi Daniella,

        I’m going to respond just to a few points here. I think the comparison of spilling seed is a pretty good one for the topic at hand. What I mean is, how do we define, “unless they are engaged in behavior that is hurtful and dishonest?” In these same terms, spilling seed is not hurtful or dishonest. Okay, so it’s dishonest if a man is married, but if he is single, it could be said that it harms nobody. But Judaism nevertheless treats it like a very harmful sin to the individual even though, as certain studies suggest, it may have certain physical health benefits. In both cases you may have willing participants, but can we really say that something being consensual makes it appropriate, permitted, etc? I’m not sure that modern progressive thought is able to properly digest the idea that even consensual behaviors can be innappropriate. It violates the modern dictum of “all unto their own.”

        You said, “I still think that at the end of the day the difference between eating shellfish and being homosexual is mostly a social difference and not a halakhic one.”

        That largely depends on whether somebody describes homosexuality as an act versus as an identity. If it is an identity, it’s a social issue. If it’s a behavior, it’s a halachic issue. Surely the trend for the last few decades has moved towards defining it as an identity, which shifts it towards the realm of civil rights. I can’t pinpoint with perfect precision what has driven this shift, but I think it’s safe to say that many factors are behind it, some benevolent and some less.

        “The point of my post was not that as a community we should grant legitimacy to gay marriage; it was that the Supreme Court’s decision (my addition: to grant legitimacy to gay marriage) doesn’t really have anything to do with us.”

        I agree in the sense that we are powerless as a religious community to influence public policy on such a matter. It doesn’t have anything to do with us because nobody has asked our opinion, and because democracies like the United States have in many areas have moved beyond the integration of religious value into the framework of legislation. Modern democracies provide many good things to their constituents, but it seems quite true that they are not designed to express moral or spiritual obligations, but rather to protect a system of rights. There is some level of tension between these two worlds, as you said. Given that, in a redeemed world, societies would be based on Divine tenants, I think we just have to sit this one out and wait (and pray) for the Moshiach to come.

  3. Why did Gd create any illicit desire? It is a challenge to overcome for the perfection of one’s soul. for some it is homosexuality. For others it is a craving for prohibited foods, excessive honor, etc. If there were no challenges there would be no reward.

    1. Hi Avi, thanks for your comment. I agree 100%, and I’ve mentioned many times on this blog that the purpose of the Torah is to help us channel our desires and animal drives to a higher purpose. I think what’s difficult for me about this in particular is that we’re not talking about the difficulty of craving cheeseburgers and needing to avoid them; we’re talking about something that is so central to Jewish life–marriage and family. I think the emphasis on this is partly due to modern culture’s obsession with sex, but some of it at least is ingrained in human nature and the centrality and importance of a romantic relationship in every human being’s life. The Torah recognizes that the sexual drive is particularly strong and difficult to resist–אין אפוטרופוס, etc.

      That isn’t to say, of course, that “they can’t help it and there’s nothing they can do about it”. Like I said, we believe that the “right” thing to do is to go against their orientation. However, just like with someone who is in the process of teshuva and just can’t bring himself to miss his Saturday football game on television, we can acknowledge that sometimes keeping Torah is difficult, and we don’t have to agree or to like it, but we can be forgiving and compassionate when people fail to live up to the ideal, recognizing that we haven’t stood in their shoes.

  4. I like where you’re going with this, but to say Hashem couldn’t have made something that seems cruel to us? Why do people with young kids get cancer? Why does my daughter have severe “special” needs? Why are good people tortured and abused? I have to believe Hashem creates some lives for souls that must face certain challenges.

    But should two men who love each other be held to a higher standard than a girl who loves a good BLT or cheeseburger? I’ll tell you one thing, I’m a lot more likely to witness a Jew eating a cheeseburger. It’s none of my business to guess or judge what someone else might (even probably) is doing behind closed doors.

    1. Hi Yosefa, thanks for your comment. I agree with you. I didn’t say Hashem couldn’t have made something that seems cruel to us. I said I don’t know why Hashem would do this. A quote from a previous letter to Josep on the topic of prayer: “Many people have experienced crises of faith because of disasters that happened to them despite their prayers. But seeing God this way is limiting Him. He is not a soda machine where if you punch in the right code, He’ll give you exactly what you asked for. God doesn’t always give us what we ask for, but He always gives us what we need. Sometimes what we need is terribly hard and excruciatingly painful. True faith in God is believing that He always gives us what is truly best for us on a cosmic and spiritual level, even if our limited human capacity for understanding cannot fathom the purpose of some things that happen.”

      But of course we must face this with humility and realize that we really don’t have the answers and don’t understand why God does what he does. We can’t go around telling people, “God gave you this challenge because He knows you need it/can handle it.” We don’t really know what other people need or can handle. Sometimes they might feel like they can’t handle it. I bet you are familiar with that. All we can do is do the best we can with what we have, and trust that God knows what He’s doing. Much strength, health and happiness to you and your daughter, and may you have much nachat from her.

  5. I have seen many arguments why the state should or should not allow people to define marriage in this way or that way. None of the arguments have gone so far as to include other (co-called “polyamorous”) relationships, which would also be a challenge (if a person can love one other person, why not two or more? etc.). None of the arguments, however, seek to explain why the state should define or even recognize marriage in and of itself, as opposed to domestic partnership. It is taken for granted that just as countries and peoples had marital rites that have evolved or been maintained through to antiquity, that for reason of – I don’t know: history? or is it tradition or consistency? – a modern state should have the power to declare people to be married. Today, two people that live in the same home can be considered married in most western jurisdictions by virtue of the fact that they share living space (I live in Quebec, and the laws here are a bit different – you’re only considered married if you get married, but for most things it makes little difference anyway). In fact, even in Talmudic times, Jewish law held that a couple could be married by cohabitation (though it would be grounds to flog the husband, and was considered improper to enter into marriage in this way). In any case, my point is that there is no value left to the state in declaring (or refusing to declare) two people as legally married. This privilege should fall under the purview of religious orders – Rabbis, priests, ministers, imams, etc., or their equivalent secular or humanist officiants or whatever they call themselves today, but should have no bearing before the law or the state. The state should only allow people to declare a domestic partnership and that should be limited to two persons, as it has taxation and other implications associated with it. For anything else, it should not be tied to the state in any way.

    1. Hi Mark, thanks for your comment. I think your perspective on this makes a lot of sense, and takes the idea I expressed (“From the perspective of the state, marriage is not about religion or love–it’s about equal rights”) a step further. You are right; legally we are not talking about what people really think of as the concept of marriage. I think the insistence on the part of the LGBTQ community to use the word “marriage” as opposed to “domestic partnership” is about two things: 1) normalization and legitimacy, and 2) why should heterosexual couples have “marriage” and homosexual couples “domestic partnerships”? Why shouldn’t everyone have what is legally defined as a “domestic partnership”? It’s a good question, and I think the answer might be that it’s much easier to grant homosexuals the right to define their partnership as a marriage, than to change the definition of what the law now refers to as marriage.

      In any case, your apt question about polyamorous relationships and points about common-law marriage further reveal how confused our world is about what marriage is and what it should be. It’s a difficult situation.

  6. Hi Daniella. I appreciate that it is easier to simply redefine marriage rather than open this element of the social contract between the state and its citizenry up to serious debate, The problem is, even the current statutes in western jurisdictions would not stand up to serious court challenges. Take the polyamory case: how long will it take before a Mormon, or, more likely, a Muslim family challenge the definition of marriage as negating their freedom of religion? It’s not a big stretch of the imagination to foresee that one day, probably fairly soon, a polygamous family, having immigrated to a western country, will seek recognition of their union. Whereas polyamory, in general, and polyandry are fairly new, fringe, concepts, polygamy has existed for millennia and is found in the roots of Judaism (and was still practiced by certain Jewish groups, up until not too long ago, such as Taymanim), certain Christian sects (e.g. Mormons), and is still found throughout the Muslim world.

    To put it succinctly, some times what is easiest is not what is best. It would be best to have a serious debate rather than to take the easy route.

    Aside from the above, the very notion that a judiciary would take upon itself the power to impose its opinion, no matter how “progressive”, upon a legislature rather than adjudicate based on the existing body of law and jurisprudence, is very dangerous indeed. The judiciary (certainly the supreme court) is not an elected body. Though it is society’s bulwark against “the tyranny of the masses”, it cannot give itself the freedom to simply do away with law or to write new law. It is free to interpret the existing laws, to determine which laws have precedence over other laws, and even free to bend those laws in order to better suit the contemporary circumstance, but to give itself the power to stand above the law and to even rewrite that law is dangerous. It sets a precedent whereby the unelected body grants itself the right to place its own interpretations and interests above those of the people. It also invites the legislature to arm itself with its own legal constructs in order to defend its ability to set laws despite rulings of the judiciary. For example, up here in Canada, we have the infamous “notwithstanding clause” in our constitution, which essentially allows the Federal government or any Provincial government to set aside ruling made by the judiciary, even if they come from the Supreme Court of Canada. The use of this clause is very unpopular with the citizenry and it’s not a simple as I have described it, but it has allowed governments to bypass court rulings that certain laws violated the Canadian Charter of Rights and Freedoms. And the reason it exists is essentially to give these governments a vehicle through which they can bypass rulings of the judiciary that they disagree with. How soon, I wonder, will it be before the US Congress decides to pass an amendment to the US Constitution to allow the Congress, or any state legislature, the power to bypass a supreme court ruling for a period of time?

    1. Hi Mark, I am unfortunately not familiar enough with either political system to have anything intelligent to contribute on the matter. I can definitely see how the method in which this ruling was made may set a problematic precedent. As for polygamy, I think it’s another one of those the-rights-of-the-individual-vs.-the-needs-of-society questions. Unlike gay marriage, polygamy has been shown to be detrimental to society and to cause severe social problems, and I think it’s pretty hard to argue that society has changed enough for that to no longer apply.

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