Photo Credit:
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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8 COMMENTS

  1. The churches are the ones directly affected with the SC decision and not the Jews. Same sex marriage advocates targeted the churches and Christian businesses to sue them with Anti-Discrimination law. Why they would not even care for businesses owned by Muslims?

  2. one of the rare instances in which the Jewish Press has allowed the voice of reason to be presented on its website

    the author expresses quite clearly that other people's behavior, contrary as it might be to halacha, does not impact shomrei mitzvot.

  3. G-d did not destroy Soddem and Gamorrah soley because of homosexuality even though that was the source of the problem. The straw that broke the camels back so to speak was the fact that all people living in those cities, did not oppose it, they condoned it. that is when G-d, and why G-d destroyed it. If you think G-d will not hold you responsible, you had better think again.

  4. I am not very religious and I personally have no desire to be Gay but do not oppose it. My problem is that the ruling is discriminatory against another persons belief. If I am a baker and this individual wants cookies or anything I will sell it but to sell him a cake for an affair my religion is
    against is like having to force me to approve.

  5. This is not about discrimination, it is about rebellion. God is your maker (creator) whether you want to aknowledge it or not. God has the final say. God created man and woman to procreate. This is about God's will not mere man's will. God gave man a will to choose, but if you choose wrongly then you have no one to blame but yourself. There are consequences in your choices.

  6. I AM very worried about the future of America. See Hulin 92,b-93a: These are the thirty commandments which the sons of Noah took upon themselves but they observe three of them, namely, (i) they do not draw up a kethubah document for males,1 (ii) they do not weigh flesh of the dead in the market,2 and (iii) they respect the Torah.
    Yes, most of the believing Christians respect the Torah; but Planned Parenthood sells flesh of the dead in the marketplace, and now the Supreme Court has announced that marriage OF MALES IS is a constitutional right. It is possible to debate whether the Supreme Cort exceeded its constitutional authority in doing so, but it seems that secular society in the US accepts this as a moral norm.

  7. You can't see the forest through the trees:

    This is about money: the next step, which is now being demanded from many corners, is the removal of tax exempt status for all religious institutions who refuse to allow same sex marriages. The federal government is starving for cash and this is how they're going to get it.

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