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Rabbi Michael J. Broyde

The many different Orthodox commentators who have spoken about the recent Supreme Court decision mandating same-sex marriage nationwide generally fit into three camps: Some see the sky as falling, a very few are supportive, and others just worry about the consequences.

I am not in any of these camps: I simply think the decision is not at all important to the Orthodox Jewish community. Allow me to explain.

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I have one data point and five basic ideas that persuade me that this decision will have no significant impact on our community.

First, an important point of data: The vast majority of Orthodox Jews live in states (New York, New Jersey, Maryland, Massachusetts, California, and Illinois) that already legalized gay marriage years ago and would have continued permitting same-sex marriage even if the Supreme Court decision had been 5-4 (or 9-0) in the other direction.

To the extent that lawful same-sex marriage might intrude on the lives of Orthodox Jews, it should have done so in those states with their large Orthodox communities. But in fact it seems to have had little or no negative impact.

Second, permitting same-sex marriage is not a coercive decision. No one has to marry a person of the same gender. It is a liberty-enhancing decision and is considerably less problematic from a Jewish law perspective than Roe v. Wade, which permitted abortion, since all participants in same-sex marriage consent (in contrast to abortion).

This is very important to grasp. We as Orthodox Jews generally gain from supporting the right of all to live as they see fit so long as all the participants consent. For example, we have always supported all modes of worship in America – including overt idol worship – as in our best interest. This might be no different. We need to worry more about state-induced coercion and less about state-enforced morality.

Third, American family law already allows for many types of marriage that violate Jewish law. To list just a few, American law permits a man or woman to marry without giving or receiving a get; it permits intermarriage; it permits a man to marry two sisters sequentially; and it permits one to marry one’s father’s wife or mother’s husband (after their divorce or death). Adultery is permitted as well under American law.

Further, some of the above are in violation of both Jewish and Noachide law.

No one seems to have any problem with any of these laws and we do not seem to be campaigning even to criminalize adultery. Living in a promiscuous society poses challenges, but the legality of same-sex marriage seems small compared with other forms of sexual sin.

Fourth, same-sex relationships that are non-marital have been functionally permitted for decades and one can hardly see any significant legal downside in permitting marriage, given the basic libertarian model on matters of sexuality (which are the norm in America now). It might even increase public support for marriage generally, with greater subsidies for marriages from the state, now that all can be married.

Fifth, I doubt that religious institutions that refuse to participate in same-sex marriages will be oppressed. Although it is true that the Supreme Court did allow the government in Bob Jones University v U.S. to strip the tax-exempt status of a religious college that engaged in racial discrimination, that precedent has never been extended to any other form of discrimination.

Many religions engage in what would otherwise be prohibited discrimination – along gender lines (like Orthodox Judaism) or national origin lines (like the Ukrainian National Church) or many other prohibited grounds – but no attempt has ever been made to stop religiously motivated discrimination not based on race. I suspect this is because race holds a special place as the most invidious discrimination in American history.

Generally, the Supreme Court has been very sympathetic to the right of religious institutions to govern themselves and regulate their institutions, other than on matters of racial discrimination.

Sixth, there will be an issue with denial-of-service claims against commercial businesses that refuse to serve the same-sex community on the same basis that that they serve any other customers. What that simply means is that the gay and lesbian community will be granted the same protections as the Jewish or African-American community. Just as a Christian photographer should not be allowed to refuse to photograph Jews or their weddings, the same will be true of gays and lesbians and their weddings. The same way that hotels cannot decline to host Jewish weddings, they will not be allowed to turn away same-sex weddings. Just like you cannot fire someone for being Jewish, you cannot fire someone for being gay.

Commercial discrimination of every type is very bad for Jews and we ought to support legislation that prohibits any denial of service by businesses or in employment.

Religious institutions are certainly exempt from these laws and uniquely Jewish commercial institutions, such as kosher caterers, are at the crossroads of competing laws and could very well be exempt from denial-of-service claims if they closely link their business to a hashgacha agency that limits their ability to provide services in situations that violate Jewish law. This would protect a small number of uniquely Jewish for-profit institutions, such as kosher hotels or caterers. It would not protect an institution that otherwise does not comport itself with Jewish law, or that does not need a hashgacha.

So, in light of the historical data – most Orthodox Jews live in states that have permitted same-sex marriage for some time now and such marriages have had little impact on our community – and the five important points discussed above, I just do not see the Supreme Court’s decision as one that is important to us.

Employment Division v. Smith (1990), which denied any religious protection from criminal laws of general applicability, poses a much greater threat to our community and its basic ability to function; to this day, case law driven by Smith endangers Orthodox Judaism’s ability to function in America.

Years ago, the Orthodox community understood that many things that violated halacha ought to be legal under American law; for instance, we support the idea that intermarriage should be permitted as a matter of American law, even though it is a very severe violation of halacha. Concomitantly we stopped looking at secular law as a source of our morality but instead looked to it for protection of our right to worship freely and conduct our lives in accordance with our beliefs.

Of course people are disappointed about the underlining moral message of the same-sex decision. The Orthodox Jewish community has shared, if in less dramatic fashion, the Protestant perspective toward secular law as a reflection of the country’s Judeo-Christian foundations, and the abandonment of that tradition has left many feeling scandalized. But we as Jews never fully accepted the idea of Judeo-Christian ethics as our common heritage with the Christian community in America or as the foundation of a common society; we always craved religious freedom as a right much more than Judeo-Christian ethics as a norm.

The decision to legalize same-sex marriage does not undermine either the right to worship as we see fit or to conduct our lives consistent with our tradition. Religious liberty is the most important value and the decision permitting same-sex marriage is unlikely to significantly affect that.

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Michael J. Broyde was twice ordained by Rabbi Lamm. He is a law professor at Emory University. He has held a variety of rabbinic roles over the years, from director of the Beth Din of America to rabbi of the Young Israel in Atlanta to Rosh Kollel of Atlanta Torah Mitzion.
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