Photo Credit: Nathan Lewin
Nathan Lewin

Following Shabbat services on the day after a Supreme Court majority recognized a constitutional right to same-sex marriage, I say to the young rabbi of our Modern Orthodox Jewish congregation in Potomac, Maryland, “How will you respond to the two Jewish young men who will now ask that their wedding ceremony be performed in our sanctuary?”

Very learned in Talmudic thinking but unschooled in American constitutional law, he replies, “I’ll tell them that we follow Orthodox Jewish law, and that a wedding of two males is not permitted in our building.”

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The rabbi is unaware of the then-celebrated 1983 case of Bob Jones University, decided when the rabbi was a toddler. The Supreme Court – with only Justice Rehnquist (not yet chief justice) dissenting – ruled that a fundamentalist Christian religious university was not a “charitable” institution entitled to tax-exempt status under American tax law because the university enforced its religious principle that prohibited interracial marriage and dating.

A majority of the Supreme Court has now elevated same-sex marriage to the constitutionally protected status of interracial marriage. So the Bob Jones precedent could mean that the “one man-one woman” marriage rule of our Orthodox Jewish synagogue of 500 families renders it no longer “charitable,” and contributions to the synagogue are not tax-deductible. That would be an effective death sentence for the congregation.

Will a court distinguish between Bob Jones’s religious rule that forbade interracial marriage and the Jewish religious rule that forbids same-sex marriage? According to Jewish teaching, our rule began immediately when God created woman and instructed Adam, as recounted in Genesis 2:24, “Therefore a man shall leave his father and mother and cling to his woman and they shall become one flesh.”

This verse conclusively defines marriage for those who believe that the verse’s teaching is the word of God. Does the Orthodox synagogue’s enforcement of this religious principle on its premises, like Bob Jones’s enforcement of its religious ban on interracial dating on its campus, make the institution no longer “charitable” under the laws of the United States?

When he presented oral argument supporting constitutional recognition of same-sex marriage, the solicitor general of the United States candidly acknowledged the problem. Justice Samuel Alito asked whether favorable tax status would be denied to many religious institutions. Solicitor General Verrilli replied that “it’s certainly going to be an issue. I don’t deny that.”

There was not much solace in Justice Kennedy’s majority opinion. He graciously described as “decent and honorable” those who believe same-sex marriage to be wrong and defended their right “to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” The First Amendment, he said, entitles them to “proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Does “proper protection” mean that our synagogue continues its tax-exempt status while it is fighting off a possible challenge by the IRS and battling legal claims by passionate advocates of the LGBT movement who argue that their newly established constitutional liberty to same-sex marriage trumps our right to the free exercise of religion?

Here again history teaches a devastating lesson. Bob Jones University finally lost its battle in 1983, but that was a decade after its claim to continued tax-exempt status was first on the Supreme Court’s docket. In May 1974, the Supreme Court unanimously held that Bob Jones was challenging the IRS prematurely if it sued before actually paying the tax; it had to pay first and sue later. The ensuing litigation took ten years and probably cost a fortune in legal fees. If IRS officials agree with the LGBT claim that same-sex marriage right is paramount, our synagogue will have to spend years in the courts fighting that claim while relying on contributors who cannot deduct their contributions in calculating their tax obligation.

This prospect calls for prompt Congressional relief recognizing the continued legal status of those in American society who adhere, as a matter of religious conscience, to the view that Justice Kennedy acknowledged goes back to “the dawn of history” – namely, “that marriage is a union between two persons of the opposite sex.”

Title 42 of the United States Code now contains laws that protect the free exercise of religion in various other contexts. Congress should add to it a law that states: “No person shall take or threaten any adverse action under color of Federal or State law against a person or religious organization that, in the exercise of a bona fide religious belief, refuses or fails to provide a service implementing or assisting the constitutional right to same-sex marriage recognized by the decision of the Supreme Court of the United States in Obergefell v. Hodges, No. 14-556. The district courts shall have original jurisdiction of actions to enjoin violations of this section.”

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111 COMMENTS

  1. this reminds me very much of the men’s clubs who did not wish to admit women as members… a given group has a right to admit and act as it chooses within the group….. denying marriage rites to two people — whether they are hetero or not, doesn’t deny them the opportunity to marry under civil law or through another method….. it only denies the privilege — not right — under religious laws….. if doctors have the right to refuse to prescribe birth control for women courtesy of religious beliefs, then shouldn’t religious belies be tolerated here, as well?

  2. Nat Lewin: Precedents can no longer hold valid after the illegitimate Supreme Court in US followed an illegitimate POTUS to overturn the oldest precedent in human memory; Stop lecturing at the University of lost causes and fight corruption in Israel instead of turning a blind eye to it or indeed condoning it

  3. I believe protections are in place or will be in place for refusal to perform ceremonies as a matter of conscience. There is a religious basis here whereas the interracial marriage question had no religious standing based on liturgy. That said, there will be others able and willing to perform such unions. So why would a couple prefer a hostile environment to a welcoming one for such an important event?
    Further, schuls are not the same as flower shops or bakeries that are supposed to be available to all comers. Had we been mature enough to allow equal rights to such [usually] civil unions such as regarding hospital visits, inheritance rights, health care, children, etc. we could have avoided now needing to call such unions marriages.

  4. The solution is challenging, but rather simple. Since most current Orthodox Rabbis, and (I believe) poskim and Talmudic scholars would say, our place is in Israel, we should start making our plans to make aliyah BEFORE the US collapses (following the path of Rome and Greece, when sexual perversions took hold).

  5. The problem is, in the arguments before the Supreme Court, when the Solicitor General was asked if a not for profit would lose its status by not marrying, and it disgusts me to say that, these individuals, the Solicitor General responded with a PROBABLY.

    The bottom line is the socialist Liberal Democrats don’t give a damn about your religious freedoms or any other freedoms mentioned in the Constitution.

  6. Laws Against Inter-racial Marriage Had Nothing to Do With G-D…Moses Himself Married an Ethiopian Woman…So There is No Comparison Between Inter-racial Marriage and Calling Two People of Same Gender Married…

  7. A same-sex couple would ask an Orthodox rabbi to perform their marriage so that when he refuses they can sue him, tying him up with litigation for years and costing him and the shul a great deal of money. The objective is to cause the shul to go under and generate fear of being sued in other Orthodox communities. There are people willing to do that because they believe freedom of religion should only extend to those religions who agree with their viewpoints.

  8. Some states have set in place protection for religious establishment. The real question is, is a rabbi or pastor or whoever "obligated" to perform marriages at all? They can always get this done from an officer of the court or someone who is neutral about this question. It becomes, in my opinion, a separation of church and state issue. There is a lot of confusion about what the Supreme Court has done and they had NO RIGHT to do it as it is making law and that is not their place in our government system.

  9. The author writes, "…the Bob Jones precedent could mean that the “one man-one woman” marriage rule of our Orthodox Jewish synagogue of 500 families renders it no longer “charitable,” and contributions to the synagogue are not tax-deductible. That would be an effective death sentence for the congregation."

    Perhaps it would not be anything like a death sentence for this, or any other congregation. If our shuls and other organizations lose their tax-exempt status we might lose our buildings, but the loss of our property is hardly unprecedented in our history. We will manage. We will somehow continue to form minyanim and educate our children and do chesed and everything else that we have been doing for millennia. To borrow a phrase from the left, we are on the right side of history.

  10. Donna Courtois One sees the phrase, "The process is the punishment" a lot these days. People are more and more brought to ruin by lawsuits and endless, incomprehensible, and self-contradictory government regulations. It's death by bureaucracy.

  11. This is no surprise of what is happening now in America, it has been a long time coming. A question keeps coming up…why don't the same sex couples go ask a muslim to marry them or bake them a cake for the wedding? They know better. Besides all that believers in "The Book" have always been under some type of persecution but we adjust wherever we go and don't give in to their ungodly demands. Stay strong!!! Keep the faith in Adonai, He has a plan and He hasn't forgotten………it is a warfare between good and evil.

  12. Terry, I understand your perspective of a separation of Church and State, however; many couples want a religious ceremony which is seen as a Covenant, rather then, or in addition to, their civil contract. Churches and synagogues need to be protected.

  13. This is inflammatory rhetoric that is not justified by real threats. Has there EVER been a challenge to the tax exemption of a synagogue that refused to perform an intermarriage? Has there EVER been a challenge in the many states that had legalized same sex marriage prior to last month? The answer of course is no.

  14. The SC decision was clearly correct as a matter of law. There were serious equal protection issues with granting opposite sex couples real legal and financial rights that were denied to opposite sex couples. And the idea of a state no being required to recognize a marriage performed in another state should have been shot down by a 9-0 vote.

    The equal protection issues could have been addressed by civil union laws, but the anti-Gay crusaders weren't interested. They gambled and lost.

  15. SCOTUS did not make law. They resolved the disagreements among appeals courts on the question. One appeals court had rejected same sex marriage while the others had not. That is how it got to SCOTUS. Each appeals court's rulings apply to the states in its jurisdiction. All SCOTUS said was that this issue could not be limited by jurisdiction, but needed to be the same standard in the entire country – in this case following what the vast majority of the appeals courts had ruled.

  16. Shuls should no longer perform any weddings. Then they will not loss tax except status. Rabbis should oversee weddings without being involved in the wedding license. Let every couple go to the court house to be legaly married. If there is a law against this it should be fought under the establishment of religion clause of the constitution. The is no such thing in the constitution as seperation of church and state. If the government forces a clergyman to marry a same sex couple then the government is establishing religion.

  17. Although I am not a lawyer, this seems ridiculous. There is no way that a religious institution can be forced to perform a religious rite (e.g. marriage) differently than their rules require. The comparison to Bob Jones University is fallacious – the university supplied a non-religious service, education. According to Mr. Lewin, how is it that no rabbi or synagogue was ever sued or otherwise taken to task for refusing to marry a Jew to a non-Jew? Stephen Loeb, Janine Gilbert – am I right?

  18. I agree with the writer's sentiments. However, this is a hack piece that is a complete fantasy. Nothing happened. No Rabbi needs legal aid. No shul is having its tax exempt status removed.
    The article is completely HYPOTHETICAL!

    Read below the words "COULD MEAN" and "WOULD BE".
    Not sure if many reading this know of this classic Brooklyn saying from my teen years……"if my grandmother had ______, she's be my grandfather".

    "So the Bob Jones precedent could mean that the “one man-one woman” marriage rule of our Orthodox Jewish synagogue of 500 families renders it no longer “charitable,” and contributions to the synagogue are not tax-deductible. That would be an effective death sentence for the congregation."

  19. Ah, but he's talking at the Federal level, the removal of Federal tax exemption. Federal and State tax exemption are separate things, although the State level (at least in NYS) is generally granted almost automatically (you do have to file a form) once the federal level has been granted.

  20. Jeff Neckonoff But would you disapprove if it did? Somehow I doubt it.

    What's to keep it from coming? There was no need to attack a cake store, or a photographer, or a private wedding chapel, or a software executive, or a chicken chain. What's to stop a fanatic from attacking a church? They really don't like religion, and really don't like people who disagree with them.

  21. JAdele Plotkin On the contrary, Europe is a highly secular place. For example, France has recently prohibited the display of religious symbols (including kippot) in schools. I lived in Italy for 18 years. In this home of the Roman Catholic church, the opposition to religion is enormous. Also, Europeans pride themselves on their secularism.

  22. Rather than performing marriages, Orthodox rabbis perform sign marriage certificates exclusively for couples for whom they have performed kiddushin/nissuin which are religious rites and not subject to SCOTUS. Since same sex couples are not able to have kiddushin/nissuin there should not be an issue, IMHO

  23. Almost as bad as the issues raised by Nathan Lewin (which are plainly alluded to by Justices Alito and Thomas in their Supreme Court dissents) are all the ignorant liberal buffoons –who actually think they understand better than Lewin, one of the leading Consitutional attorneys in the Country, and better than the guys actually on the Supreme Court.

  24. Another important point omitted from the article. Upon Googling the Bob Jones decision, I learned that the ruling clearly said that it dealt "only with religious schools — not with churches or other purely religious institutions." So maybe Mr. Lewin's rabbi was not so far off track in regard to his synagogue.

  25. No you're not a lawyer. The simple issue is whether religious objections to same sex marriage would be respected like religious objections to an interfaith marriage, or whether it would be treated like refusing an interracial marriage — which Bob Jones case says is against public policy and thus not entitled to First Amendment protection. Supreme Court Justices Alito and Thomas allude to this issue coming before the Court in their dissents. Kennedy might very well already be a 5th vote to deny First Amendment objections to same sex marriage –and almost certainly if more left wingers are put on the Court by another Democratic President there will be a majority to basically undermine the First amendment in this scenario.

  26. Avi Scheiner Are you referring to a rabbi being expected to perform a CIVIL marriage for a same-sex couple, or a religious marriage (which is a halachic impossibility)? If a rabbi prefers not to perform ANY solely civil marriages, would there be any legal problem with that?

  27. The issue is simply laid out by Lewin for laymen. Following the precedent of Bob Jones and the new ruling that same sex marriage is a Constitutional right, the IRS can now seek to revoke tax-exempt status to any religious institution that refuses to perform same sex marriages (or, e.g. to admit as students those who profess such an orientation). Many liberals already insist that indeed this should be the result — revoking tax-exempt status to 'noncomplaint' religious institutions. This would effectively be the death knell for many religious institutions.

  28. This is a nonsense argument. Rabbis have NEVER been forced to perform wedding against their religious belifs.

    Rabbis have never been FORCED to perform mixed marriages (Even Interaccial Like in Loving vs Virginia) and they wont be forced to perfomed same sex weddings either

  29. Had this commentator actually spent some years studying Constitutional Law and read the cases in issue, including the dissents by Alito and Thomas, one would still have to have some serious character flaws to think himself more knowledgeable than Nat Lewin, one of the leading Constitutional lawyers in the country, as well as Justices Alito and Thomas. See wiki for definitions of ignorance and arrogance.

  30. re Charlie Hall. Had this commentator actually spent some years studying Constitutional Law and read the cases in issue, including the dissents by Alito and Thomas, one would still have to have some serious character flaws to think himself more knowledgeable than Nat Lewin, one of the leading Constitutional lawyers in the country, as well as Justices Alito and Thomas.

    "The fool doth think he is wise, but the wise man knows himself to be a fool."
    -William Shakespeare

    “To know that you do not know is the best. To pretend to know when you do not know is a disease.”
    -Lao-Tzu

  31. Short answer: no. (And, unrelated, Hobby Lobby passed only 5-4 and all the Democrats vow to change it.) And the issues raised by Nathan Lewin, one of the leading Constitutional attorneys in the Country, are plainly alluded to by Justices Alito and Thomas in their Supreme Court dissents.

  32. but liberals are already asserting this. See "Democratic Senator: First Amendment Makes Clear Christians Must Participate In Gay Weddings"

    "Liberals wasted no time in pivoting from “it’s a red herring for conservatives to say we’ll force churches to violate their faith” to “of course we’re going to force churches to violate their faith!” Enter Wisconsin Senator Tammy Baldwin ….

    http://rightwingnews.com/top-news/democrat-senator-first-amendment-makes-clear-christians-must-participate-in-gay-weddings/

  33. The issue of 'being forced' doesn't mean 3 government officials physically dragging a rabbi or minister to the ceremony and beating him until he says "Rotzeh Ani" but losing tax-exempt status –which would be death knell for most institutions.

  34. jadele plotkin — No, you are factually incorrect (in too many ways to count). I would suggest actually reading the decision – after perhaps taking a course in Constitutional Law, before 'opining' what SCOTUS did or did not do. Better yet, a terrific Constitutional attorney, Nat Lewin, tries to explain some of it to laymen above.

  35. Indeed the SCt could theroretically rule that legislation exempting religious institutions from performing same sex marriage is itself unconstitutional — as it ruled the Defense of Marriage Act signed by Clinton was unconstitutional. But at least such a law would grant institutions immediate protection for the time being, force legislators to take a position on this issue, and perhaps get this to the courts when sentiment is still on the side of religious groups. But in truth only a Constitutional Amendment could fully guarantee that in the future religious groups will be able to continue to claim a First Amendment defense to performing same sex marriage. That is why this case if of concern.

  36. Nachum, you have no idea what I believe. I am a libertarian with many conservative leanings. I disapprove of anyone or any group forcing their beliefs on anyone else. I believe in freedom of association. I believe that religious organizations should be and will remain free from these recent decisions by SCOTUS,
    Since you seem to like labels, here are the Presidential candidates I voted for ever since I was legal enough to vote.
    Reagan 1984
    Bush 1988
    Perot 1992
    Dole 1996
    Bush 2000
    Bush 2004
    McCain 2008
    Romney 2012
    I've been quite more conservative-leaning at times, but I have come to the conclusion that being reactive gets me nowhere.

  37. I suggest consideration of a law that I have yet to see proposed.

    The law that I have in mind would make it a an illegal and actionable public nuisance for any person or other entity to persist in seeking a product or a service from another person or entity after being informed that the other person or entity cannot provide the same without violating a bona fide religious belief.

    Julian Tepper
    Brooklyn, NY

  38. the next thing will be polygamy is okay, and if polygamy is combined with same gender then you have open promiscuity. Imagine a bunch of males and females all "married" to each other. Disgusting is not the word. Abomination is more like it.

  39. Donna Courtois : your statements show a bigotry and a fear that people unlike you are motivated by malicious intent. Do you even know any LGBT folk? They are like everyone else for the most part just wanting to get on with their lives. The most likely legal scenario would be that no lawyer would represent such a frivolous law suit, the court would rapidly throw it out as frivolous, and some courts would actually penalize the people bringing such a suit through fines or other penalties. Courts do recognize that within a religious setting, no one can be compelled to act against their religious principles.

  40. Julian: actually there are many laws that de facto do exactly that regarding 'frivolous' law suits – in this case in clear violation of constitutional protections for people in a religious setting practicing their religion who are then sued. In other settings it is a violation of equal protection/ access when a company that sells a generic product refuses provide access to all equally. Only when one is asked to make a product unique to an event may it possibly become objectionable [eg an explicit inscription]. At that point a gray area is reached which either the people solve amicably [get the generic object and have someone else do the inscription] or let the courts resolve it which will bust any timetable for the event.

  41. Avi Scheiner : what you are referencing are opinion pieces designed to induce fears and uncertainties in others. these are opinions by certain people who want you to believe ill about others. Lashon HaRah for sure. Should you get FACTS, then you can rationally discuss them. otherwise you are just fear mongering

  42. @JAdele Plotkin. I cannot tell if you are a man or a woman. Whatever, your confused appearance supports your confused thinking. You are nothing more than another twisted mockery of a Jew. The sort of thing that our ancestor Pinhas would have stabbed through the chest with a spear and carried around the nation to hammer home the point of what we do with the morally debased.

  43. The idea of abuse prohibited works both ways; it would be abusive to force a family (Congregation) to be part of an actioin that violates their belief. Let us say that same sex marriage is a belief? Then to ask a community of people who hold opposite, but legally equal valid beliefs should be protected under the same law. What then? Have them go to the justice of the Peace, after they are decleared apostate.

  44. Shuls don't perform weddings anyway. A rabbi is not consecrated clergy, he is merely an expert in the Law. During a wedding, he is merely the master of ceremonies in a rite where couples make promises to each other, which, had they studied the Law themselves, they could well have easily made in the rabbi's absence. The actual minimum requirement for a Jewish marriage are the couple themselves plus two unrelated Jewish adult (as in 13 or above) witnesses.

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