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Why Orthodox Jews Should Not Oppose Legalizing Same Sex Marriage

Orthodox Jews who benefit greatly from the freedom to practice their religion should in no way impose their religious beliefs on others.
When institutions like kosher slaughtering and circumcision being challenged in court, we should be careful not to impose our own religious beliefs on others.

When institutions like kosher slaughtering and circumcision being challenged in court, we should be careful not to impose our own religious beliefs on others.
Photo Credit: Kobi Gideon / Flash90

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.

About the Author: Rabbi Joshua Yuter was ordained in 2003 from Yeshiva University’s Rabbi Isaac Elchanan Theological Seminary. He also holds a B.A. in Computer Science from Yeshiva University, an M.A. in Talmudic Studies from Yeshiva University, and a Master’s Degree in Social Sciences from the University of Chicago. Rabbi Yuter is also an alum of Yeshivat Har Etzion. He is currently the rabbi of The Stanton St. Shul on New York’s historic Lower East Side.


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33 Responses to “Why Orthodox Jews Should Not Oppose Legalizing Same Sex Marriage”

  1. Thomas Gray says:

    Rabbi Yuter is advocating noninterference in marriage laws to avoid reciprocal repercussions towards Jews. However, I think that the proponents of banning circumcision and kosher slaughtering will go ahead no matter what Jews say about homosexual marriage. I believe it is the responsibility of Jews to proclaim and promote the laws of the Almighty to the benefit of society, and not shrink back from fear of repercussions.

  2. Aryeh Sklar says:

    I don't see Rabbi Yuter arguing from repercussions but from being hypocritical. If we believe the government shouldn't interfere with our religious rights, we shouldn't allow the government to impose our religious beliefs on others.

    In addition, if you believe that the Jews have a responsibility to promote the "laws of the Almighty", do you think that Jews should try to promote laws forbidding blasphemy? That the Jews should back laws that forbid certain speech? That would be very bad for the jews in America, I believe.

  3. Charlie Hall says:

    Good point, Aryeh. If we really believe that we should be forcing the 7 Noachide laws on others, we would need to start a campaign for repeal of the provisions of the US Constitution that allows idolaters to hold any public office in the US, even President, for repeal of the Free Exercise Clause of the First Amendment that allows idolaters full religious freedom, and for repeal of the Civil Rights laws that protect idolaters from discrimination.

    The problem of course is that it is exactly those legal provisions that have made America a haven for Jews like no country before.

  4. Has such non-interference occurred in Canada, and European countries? Quite the opposite. Activists have used Homosexual marriage as a way to persecute the religious. In fact, failure to support adoption by homosexuals has led to difficulties for Catholic Charities in Massachusetts. So why wouldn't Orthodox Jews be persecuted?
    The sad truth is that I am putting myself and my job future at risk by posting this reality under my name.

  5. Kenneth Mathews says:

    Mr Gray is correct. Jews should promote the morality of God's laws – this brings blessings to all men and nations who listen and obey. The more gentile societies move away from the morality of God's laws the more hostile they will be toward the Jewish people. The Jewish people and Israel are a sign of the TRUTH of Hashem to the nations, the more the nations become corrupt the more they will hate the nation that reminds then that ultimately their evil behavior will be judged by Hashem. Sodomy is just one of many destructive sexual vices, others are fornication, adultery, prostitution, pornography, incest, bestiality, pedophilia, etc. These sexual vices are harmful to all men gentile and Jew and to all nations – to Israel and to the gentile nations. May God help all men to escape from sexual immorality.

  6. Liad Bar-el says:

    Charlie Hall: "The problem of course is that it is exactly those legal provisions that have made America a haven for Jews like no country before." So much for goyim laws; however, Israel is founded on Jewish Laws and is thereby the only real haven for the Jews "like no country before." We in Israel are working to rid the country of idolatry and not shrink back from fear of repercussions whereas you diaspora Jews in America are working to support it and really should be shrinking back from fear of repercussions. However, I do not see that happening otherwise you all would be making Aliyah to Israel today.

  7. Charlie Hall says:

    Actually, many of the "vices" you mention are perfectly permissible for non-Jews. For example, there is no prohibition of premarital sex, no prohibition of prostitution, no prohibition of pornography, and the prohibition of incest is much less encompassing — a non-Jewish man can even marry a paternal half-sister. And there is also no prohibition against a non-Jewish woman having sex with a non-Jewish woman.

    When we talk about "evil" and ignore Jewish standards we do ourselves no credit whatsoever.

  8. Brian Kent says:

    Now you know why I read Hamodiah. The Jewish Press is complete garbage.

  9. Roy Neal Grissom says:

    Judaism is not based on "freedom of religion" but on Divine Commandments. The notion that the Jewish mission is to serve as example of "eighteenth century" Lockean "religious freedom" is a modern notion with no roots in history. Judaism is a THEOCRATIC religion, though (unlike islam) it is a Theocracy in exile and lacks the Halakhic institutions to enforce the laws (at present).

    The Noahide Laws are every bit as binding on non-Jews as Torah Law is on Jews. The Jewish mission is to teach (and even "compel") the observance of these laws (that's what "a light to the nations" actually means). As I understand it, it is even forbidden to vote for a political candidate who does not accept at a bare minimum the Noahide Laws of basic universal morality.

    As a Noahide, I want to thank Rabbi Yuter for "bravely" advocating deserting the battlefield and leaving us Noahides to deal with secular hostility all alone. Perhaps unlike the rest of us out here in the real world, he won't be punished for not participating in an abomination which Rashi implied could lead to the destruction of any nation that tolerates it. And yes, this is sarcasm.

  10. Myles Kantor says:

    "…no prohibition of prostitution." By contrast, Rabbi Moshe Weiner writes in his sefer on the Sheva Mitzvot (The Divine Code): "The [Noahide] courts are obligated…to close down all brothels and fine and punish all men and women who practice or promote prostitution."

  11. Kenneth Mathews says:

    Mr. Hall, the sexual vices i.e. fornication, prostitution, pornography, incest, sodomy, pedophilia, etc are harmful to Jews and gentiles. With specific regard to this article, Sodomy is certainly considered evil for both Jews and gentiles by the Torah.

  12. Thomas Gray says:

    If you think about it, Aryeh, government is all about imposing a belief system. Laws against stealing, against murder are all declaring religious values and imposing them on people. It is not hypocritical to favor one set of religious values over another. If you want to allow any religious belief practiced, then prepare to accommodate human sacrifice.

  13. ha orthodox Jews aren't alone in this as certain christians who also oppose same sex marriages and abortions are already being ostracised and fined if they refuse to give them accommodations in a christian bed and breakfast place. Especially since Obama is for same sex marriages and abortions. G-d bless for the Jews taking this stand.

  14. ha orthodox Jews aren't alone in this as certain christians who also oppose same sex marriages and abortions are already being ostracised and fined if they refuse to give them accommodations in a christian bed and breakfast place. Especially since Obama is for same sex marriages and abortions. G-d bless for the Jews taking this stand.

  15. charlie Hall, you arent pushing the seven Noachide laws on us, we are taught as true christians if we agree to same sex marriages, we are mocking Christ sacrifice, who suffered the wrath of G-d for these sins of the flesh, so that by believing on Him and His Word, He becomes our High priest between G-d and us, receive forgiveness for the sins of the flesh, and those outside the body, So homosexuals by pushing same sex marriages are actually mocking Christ suffering to bring us back into favour with the Lord G-d, so that He looks on us with favour when we acknowledge that His laws are just. Shalom and G-d bless

  16. we as Jews need to be the light. we need to show the errors of living against Torah. How HaShem brings curses on us when we do not oppose this thing called an abomination in Torah Lev 18:22.

  17. Yon Tel says:

    guess what the main people who are trying to ban Circumcision are homosexuals.
    these people march in many pride parades around the county.
    the leaders of the group are almost all homos.

    Charles Antonelli who tried to ban Bris milah (the first to do so and not covered by most jewish Newspapers) is openly gay.

    Matthew Hess who printed the anti semetic comic book found out about the whole movmement at a pride parade.
    Lloyd Schofield the man who tried to ban it in SF is also gay.

  18. Yon Tel says:

    this is from an article about england.
    http://www.thejc.com/homosexuality/102266/gay-marriage-shuls-ready
    "Gay Liberal and Reform couples are already making plans for wedding ceremonies after the House of Commons this week approved the Same-Sex Marriage Bill.

    The two movements have already said they will conduct same-sex weddings if they are made legal. "

    if we allow these evil law many jews will be doing averah they previosly wouldn't have done.

  19. Yon Tel says:

    The pasuk in Yesha calls us a ohr lagoyim which the Radak interprets to mean that we should be leaders in promoting the 7 mitzvos.

  20. Ch Hoffman says:

    did you create that myth, or is it something you picked up at Paranoias r Us?

  21. Ch Hoffman says:

    none of which are relevant to this discussion

  22. Ch Hoffman says:

    there is religious "chuppa v' kiddushin" and there is secular or state marriage. Their laws are different; their purposes are different; they are regulated for different reasons; and their overlap, while in the majority of cases, is certainly not in all.

    We, as Jews, should recognize that other religions' laws were often forced on us, including in the regulation of our marriages. In Christian lands we were basically forced into eschewing polygamy, even though it had a long history in Jewish life, and still could be considered a rational alternative to single-parent families where a husband has been killed in war.

    There is no reason for our religious leaders to impose our standards of chuppa v' kiddushin on others' state marriages, any more than we insist that our standards of "issurei biah" – or illicit relations – become the norm for state laws of incest. (we, for example, forbid a divorcee from marrying her former brother-in-law, while the general law of marriage in the states permits it; we, conversely allow – if not encourage – a man to marry his niece, while most states forbid it).

    We can keep our laws as they regard chuppa v' kiddushin, and let the democratic forces govern that which is the state's area of concern.

  23. Yon Tel says:

    every single one of those people are openly gay can be easily proven as such. You can leave your gay lies to a gay website.

    I'l bet you never looked any of them up.

    I'm 100% sure you would defend SS officers too

  24. Yon Tel says:

    every single one of those people are openly gay can be easily proven as such. You can leave your gay lies to a gay website.

    I'l bet you never looked any of them up.

    I'm 100% sure you would defend SS officers too

  25. Yon Tel says:

    any Jews who is in favor of this marriage is an apikores.

    youre in favor of what god thinks is worthy of destroying the earth.

  26. Yon Tel says:

    how's a Radak that says that we have to fight for the & mitzvos not relevant to the legalization of one of them in it's worse form.

    are you even Jewish?

  27. nothing that I said indicates that I favor same-sex marriage; it's just not a religious issue – just a bracha l'vatala

  28. Jewish or non-Jewish everyone needs to follow God's laws. When people start disregarding them we get anarchy and violence. Which kind of society would you prefer?

  29. Yon Tel says:

    to bad the gemara in Chullin disagrees.

  30. Yon Tel says:

    to bad the gemara in Chullin disagrees.

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