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November 26, 2014 / 4 Kislev, 5775
At a Glance

Posts Tagged ‘same sex marriage’

Well Intentioned, but Wrong to Condone Homosexuality

Wednesday, February 27th, 2013

It seems that the gay marriage is becoming ever more acceptable in society. From an NBC news website:

In a move described by one scholar as “inconceivable” just two years ago, 75 Republicans have signed the brief to be filed in the case of Proposition 8, a California law banning same-sex marriage, The New York Times reported. The nation’s high court will hear arguments on the law in late March.

Four former governors, including Christine Todd Whitman of New Jersey, and members of President George W. Bush’s cabinet, such as former Commerce Secretary Carlos Gutierrez, signed the brief, the Times reported. Some of those, such as Meg Whitman, who ran for California governor in 2010, had once opposed same-sex marriage.

I have stated my position on this issue many times. Even though it seems inevitable that it will become the law of the land – I am opposed to legalizing gay marriage. This has nothing to do with how to treat people who have same sex attractions. My position on that is clear. They should be treated as equals among us. And there ought not be any discrimination or disparagement of them. Nor should we judge them. It is not our job to judge what other people do in the privacy of their own homes. Even if we suspect sinful behavior. What two consenting adults do in the privacy of their own home is between them and God.

When it comes to interacting with openly gay people, we have an obligation to treat them with the human dignity that every one of God’s creations deserve. They are no less created in God’s image than people who are attracted to the opposite sex. Who we are attracted to does not define who we are. To paraphrase Dr. Martin Luther King, we ought to judge people by the content of their character. Being gay is not a character issue.

But that does not make gay sex permissible or excusable. The Torah is very clear about that too. It is a very serious violation of biblical law. There is no way around that no matter how compassionate we try to be. It is for this reason that I oppose gay marriage. Because the implication of that is to place a public imprimatur on behavior that is sinful. It is in effect koshering a forbidden lifestyle. Making gay marriage not just value neutral but something positive.

This ignores the underlying sinful behavior – completely removing it from the category of sin. By definition marriage gives a societal blessing a gay couple implying that that gay sex is as moral as heterosexual sex. We are saying via legislation that we approve equally of both types of behavior. Gay marriage does not only permit gay sex – it virtually endorses it as a completely legitimate alternative to heterosexual sex.

I don’t blame gay people for wanting to be treated as completely normal in every way possible. No one likes to be stigmatized – even a little bit. The homosexual community wants the world to look at them in the same way as they look at heterosexuals. As complete equals living a sin free lifestyle – same as heterosexual.

Much as I feel for their plight and their desire to be treated as normal, treating gay sex a sin free sex is not what the Torah intended by forbidding it.

This has nothing to do with how to treat gay people. But it has everything to do with how we treat gay sex. We cannot say it’s OK to have gay sex when it is not.

I know there are people who disagree with me on both sides of the issue. I have little patience for bigots who would deny human rights to a gay person and refuse to grant them any human dignity. But on the other side of the issue – sometimes one can have too much compassion and end up completely rationalizing away sex between two men. There is no doubt in my mind that it is a biblically forbidden act no matter what the circumstances are.

And yet well intentioned people are trying to rationalize the sin away entirety. This is the case with Rabbi Zev Farber. About a year ago he wrote an essay wherein he came up with a novel approach to gay sex that would completely take away any culpability for sin by two gay men engaging in it.

While acknowledging that there has been an evolution of sorts even among Haredim with respect to treating gay people with compassion, he felt that both an Agudah Statement as well as an RCA statement fell short of treating gay people fairly. The implication of both statements is that gay sex is still forbidden and that they must live celibate lives to avoid sin. Here is how he stated his problem:

I once suggested the following thought experiment to a colleague: “If, for some reason, it became clear that the Torah forbade you to ever get married or to ever have any satisfying intimate relationship, what would you do?” My own reaction to this question is: although part of me hopes I would be able to follow the dictates of the Torah, I have strong doubts about the possibility of success, and I trust that my friends and colleagues would be supportive of me either way.

His point of course is that it is unnatural if not impossible to ask a human being to deny his sex drive no matter what his sexual orientation is. And yet gay sex is a forbidden act according to the Torah. The vast majority of educated opinion is that gay people cannot change their sexual orientation. His solution is to apply a Halachic principle called Oness (pronounced Oh-Ness) Rachmana Patrei. If one is forced to commit a sin, the Torah exempts him from any culpability. The obvious question is, why should a voluntary act of sex (of any kind) at any given moment be considered forced?

Rabbi Farber argues that when there is no Halachic outlet at all to satisfy one’s natural sex drive then at some point that drive takes over and must be satisfied. That makes it an Oness – forced. When a gay person succumbs – he therefore is absolved of any guilt. He is in effect forced by his own God given nature to act in a way that would be forbidden to heterosexual men.

The problem is that this argument eliminates the sin of gay sex in it’s entirely. Heterosexual men would hardly violate that law. And gay men are exempt from it. So why would the Torah even mention it? Furthermore this argument can be used for pedophiles too. It is well known that pedophiles too cannot not control their attraction to children either. Oness Rachmana Patrei! There are of course reasons to forbid sex with minors. But the Onesss is still there… and we should not discriminate based his sexual orientation. Is there a soul anywhere that would agree with that?!

To Rabbi Farber’s credit, he does not advocate gay marriage in Judaism:

To be sure, calling something oness does not make the action halakhically permitted; it is not. Moreover, adopting the oness principle does not mean that halakha recognizes same sex qiddushin (Jewish marriage) – it does not.

The bottom line for me is that I think he errs in his use of the Halachic device of Oness Rachmana Patrei. And I also believe that he errs in suggesting we encourage “exclusivity and the forming of a loving and lasting relationship-bond as the optimal lifestyle for gay Orthodox Jews who feel they are oness and cannot be celibate.”

It is completely wrong to encourage a lifestyle that is conducive to sinful behavior. But I agree that we ought not be judgmental about it when we see it.

Visit Emes Ve-Emunah.

Why Orthodox Jews Should Not Oppose Legalizing Same Sex Marriage

Wednesday, February 6th, 2013

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.

Barney Frank Weds Lover in Massachusetts

Sunday, July 8th, 2012

Jewish Democratic Congressman from Massachusetts Barney Frank, 72, wed his male partner of five years, carpenter James Ready, 42, in a private ceremony on Saturday, marking the first same-sex marriage conducted by a sitting US congressman.

Massachusetts Governor Deval Patrick officiated at the ceremony at the Boston Marriortt Newton in suburban Boston.  The grooms vowed to love each other through Democratic and Republican administrations alike, as well as through appearances on Fox News, according to a report by Reuters.

Democratic congressman from Texas Al Green described Frank as “beaming”, and said he cried during the ceremony.  News media were not invited.

Frank has been openly gay since the late 1980s.  He has said he will retire at the end of his current term.  He has been a vocal advocate for legalizing same-sex marriage.

Eight of the 50 states and the District of Columbia currently permit gay marriage. Massachusetts was the first.

New Hampshire House Squashes Bill Allowing Vendors to Refuse Serving Gay Weddings

Thursday, March 15th, 2012

Imagine that you’re a kosher wedding hall, catering exclusively to Orthodox Jewish events, and you’re approached by two gay gentlemen who are looking to hire your services to cater their wedding (just before the Sefira). Well, if your establishment were anywhere in the state of New Hampshire, you could lose your operating license for refusing to accommodate them.

The New Hampshire House of Representative Wednesday defeated by a 246-85 vote a bill that would have allowed photographers, caterers and others to turn away wedding gigs if they had a religious objection to the marriage.

The prime sponsor of House Bill 1264, Rep. Jerry Bergevin, Republican from Manchester, said no one should be obligated to provide services if the transaction is repugnant to them, because of their religious beliefs.

“This bill is written to protect a person of faith when they leave their house of worship,” Bergevin told the Concord Monitor. “If a Jewish catering company refuses to serve pork, they should be able to. If a photographer wants to photograph only heterosexual couples, he would be protected to do so. If a photographer wants to photograph only same-sex couples, he would be protected to do that.”

But Rep. Barry Palmer, a Republican from Nashua, a member of the New Hampshire Human Rights Commission, told the Union Leader the bill was unconstitutional, illegal, immoral, and mean-spirited.

“I have a rough idea of what discrimination is,” he said. “This bill is illegal by state statute and illegal by federal law.”

New York legalized same-sex marriages back in June, 2011, but the New York law has a provision for businesses “being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation … shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges … Any such refusal to provide services … shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit explanation.”

“This should be a very alarming warning,” Rep. Bergevin said after the defeat of his bill. “It means we are moving into a brave new world. It may not be your ox being gored at the moment, but just wait, it will be.”

And said gored ox may not be the exclusive headache of Bergevin’s constituents. After all, “as New Hampshire goes, so goes the nation.” Political trends have a way of trickling down to the more populated states, where clashes against the background of newly legalized gay marriages could end up impoverishing religious businesses.

In Defense Of Traditional Matrimony

Wednesday, April 13th, 2011

Marriage is under assault again in this country, as fewer adults choose to tie the matrimonial knot while the Left continues to lend civil and economic credence to unions of same-sex partners.

According to the Census Bureau, the percentage of married adults in the U.S. has dropped steadily over the past few decades, from 72 percent in 1970 to around 54 percent last year. Part of that decline can be attributed to the delay in getting married, as people spend more time pursuing higher education and establishing themselves in their careers.

Additionally, a large component of this decline stems from the fact that many choose not to marry at all. And those who do are far less likely to remain wedded for the balance of their lives than in past decades.

In a recent CBS News poll, seven in ten Americans said the institution of marriage is weaker now than it was 20 years ago, despite the fact that research shows married people tend to live longer and are generally healthier, wealthier, and happier.

The reasons for this shift are many, including the sense that many of the traditional benefits” of marriage – companionship, financial security, the ability to have and raise children – can be achieved in today’s society without the so-called burdens of a longstanding relationship.

Of course, the question is not merely whether to wed or not to wed. In recent years, the question has increasingly centered on the fundamental definition of marriage as the civil union of a man and a woman.

To date, five states and the District of Columbia have approved gay marriage, while others permit civil unions of same-sex partners. Under pressure from the White House, the military recently repealed its longstanding policy of “don’t ask, don’t tell.”

President Obama advanced the cause even further when he crossed into the judicial realm by announcing the Executive Branch would no longer oppose court challenges to the Defense of Marriage Act, a 15-year-old law that prohibits the federal government from recognizing same-sex marriages for purposes of taxes, social security and other programs. According to Attorney General Eric Holder, the law’s definition of marriage as between a man and a woman is “unconstitutional.”

Naturally, the administration’s position, not to mention its timing, came under fierce attack. Lamar Smith, the Texas Republican who chairs the House Judiciary Committee, called the Justice Department’s decision to stop defending the law “the real politicization of the Justice Department,” lamenting that “the personal views of the president (can be made to) override the government’s duty to defend the law of the land.”

While politicians attacked the law largely for political considerations, organizations like the Agudah took exception to Obama’s decision on religious and moral grounds, calling it, among other things, “a provocative step toward undermining our nation’s traditional values and moral fiber.”

While one can certainly appreciate and unequivocally support the aforementioned position regarding same-sex marriage, one wonders why this issue regularly garners so much of our time and energy.

After all, in what sense does such legislation change the current reality? Certainly the absence of such legal backing has not served as much of a deterrent until now.

Further we live in a society that routinely flaunts norms and values wildly inconsistent with our Torah lifestyle. Why have our leaders seen fit to speak out publicly and repeatedly against this particular issue?

I believe the reason has nothing to do with attempting to impose any meaningful change on the status quo. Rather, it is because we maintain that recognizing and affirming same-sex marriage pose a fundamental threat to the very fabric of human society.

According to our tradition, non-Jews as well as Jews have found such anti-family conduct to be on a level of complete abhorrence, comparable to cannibalism.

Ulla said, [there] are thirty commandments [comprised in the seven Noachide precepts] which the sons of Noach took upon themselves, but they [only] observe three of them . They do not draw up a kesubah document for males, they do not weigh flesh of the dead in the market, and they respect the Torah.

[Chulin 92a-b] Obviously, this in no respect implies the nations of the world have historically abstained from homosexual practices. To the contrary, it was a central element of many ancient civilizations. Still, they stopped short of legitimizing their desires in the form of marriage.

Printed from: http://www.jewishpress.com/indepth/opinions/in-defense-of-traditional-matrimony/2011/04/13/

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