Same-Sex Marriage (2)

I seem to have struck a nerve last week when I wrote about same-gender marriage as it has evolved so far in our country and in the world. I’d like to return to that topic today and specifically to address some of the issues readers have raised with me.

I wrote that I didn’t have any difficulty wanting civil law in our country to treat all citizens equally and fairly, and for our courts to permit the introduction of discriminatory legislation only when the resultant discrimination is fully rational. (I gave the example of not permitting blind people to drive, which some of you thought I meant humorously, but there are many other examples, including some that are not universally accepted, of what I think of as rational discrimination. Not letting boys play on a girls’ basketball team would be one. Not forcing synagogues or churches to admit members of other faiths as members would be another. I could go on.) The bottom line is that I believe, both as a Jew and as an American, that it is irrational, thus wrong, to use the sexual orientation of a citizen as a criterion in deciding whether or not he or she is entitled to the tax benefits awarded to couples bound to each other by law (and not simply by emotion) or, for that matter, in determining whether that individual should be entitled to whatever other benefits society offers other citizens who choose to bind themselves legally to another.

The question of gay marriage is related, but not identical, to the question of how Judaism considers homosexuality and, by extension, the moral worth of homosexual persons. When considered dispassionately, our tradition is liberal and inclusive. Building on the basic assumption that communion with God can be effectively be sought through the medium of obedience to divine law, Scripture offers ways for the faithful to introduce that concept of allegiance to the law in even the most personal and private corners of daily life. The dietary laws are a good example. Certain foods are, probably arbitrarily, declared forbidden. Obviously not everyone will relate to those laws identically, but that is not considered a fatal flaw in the system: in the end, what counts isn’t whether one would have eaten some specific food if it weren’t off limits, but that one chooses consciously to limit what one eats for the sake of one’s spiritual growth. Even in sexual matters—an even more intimate rubric than diet—Scripture takes the same approach. Most sexual acts are permitted, just as are most foods. Indeed, there are no sexual acts (other than those that might involve degradation, coercion, or violence) that are forbidden to husbands and wives, but the concept of allegiance to divine law is introduced in terms of the time frame: all is permitted, but not always, not during every single week of the month. The family purity laws pertain, at least overtly, to heterosexual couples. But Scripture also opens the door at least to male-male couples by introducing a sex act that would otherwise take place between two men and declaring it forbidden. From the vantage point of Scripture, this is inclusionary, not exclusionary, because it invites such men into the arena of spiritual enterprise being proposed by offering them something they might otherwise be drawn to, but which they cannot permit themselves. From such self-discipline, the Torah teaches, comes the possibility of real spiritual growth.

The key concept is that the same laws apply to everyone. Indeed, Scripture makes that point specifically when it declares that “there must be only one Torah for citizen and stranger” at Exodus 12:49 in the context of the laws of Pesach. Obviously, every citizen will not relate to every law in the same way. Not everyone will be equally burdened by the prohibition of eating oysters. (I personally can’t imagine eating an oyster, but maybe that’s just me.) Not everyone will relate equally, or even at all, to the family purity laws, or to the prohibition of homosexual male intercourse. In the end, this is neither here nor there: that there is one law for all is far more relevant than the detail that not all will relate identically to the specific clauses and codicils of that one law. There is, by the way, no word in classical Hebrew for homosexuality, nor is there a noun that denotes homosexual man or woman. This is hardly because there weren’t gay people in ancient times! But it reflects a liberal, inclusive worldview moderns would do well, I believe, to embrace. Different people relate to the world differently. People have different tastes, different proclivities, different avenues of expression, sexual and otherwise. None of this is unfortunate or to be regretted. Just to the contrary: the variegation inherent in the human experience is part of what makes society interesting, vibrant, and alluring.

It was from this vantage point that I embarked last week on my discussion of same-sex marriage. Starting out from the point that Scripture nods tacitly to the existence of gay people, or at least gay men, by including them in the larger framework of spiritual growth through the medium of fealty to law, it seems to me absurd to treat gay people as though they are morally, emotionally, genetically or intrinsically inferior to heterosexual people. That is why I look with such strong disfavor on civil legislation that discriminates against homosexuals. Whether we should evolve a kind of Jewish same-sex marriage ceremony is, however, a different question entirely. It needs to be considered against the background of what marriage is in our tradition, whether it is a basic right or a specific way of sanctifying a specific kind of relationship without necessarily denigrating the many other kinds of relationships, gay and heterosexual, into which people enter. The definition of marriage as the sanctified union of man and women is one of the most ancient and basic parts of our tradition. That too I tried to say clearly last week. We have moved on from many pieces of our heritage that appeared, at one point, to be so far outside the bounds of common morality so as to be simply untenable. No one thinks the daughters of kohanim who have intercourse outside of marriage should be burnt alive, as Scripture clearly decrees at Leviticus 21:9 (and as Rambam blithely codified as law in the Mishneh Torah at Hilkhot Isurei Biah 1:6). But, as I also tried to say clearly, I do not believe that we, as a people, have moved to the point at which we could say the same about not permitting gay people to marry. The issue is too new, perhaps, and its implications just a bit too murky for that kind of clear, unequivocal moral reasoning to be invoked. We could get there. Maybe even we will get there. But I do not believe that we are there yet.

It will hardly be me personally who makes this decision. Only minor innovations have been made by individual rabbis in the last two millennia or so, and the handful of meaningful exceptions only prove the general rule. The kind of innovation that introducing gay marriage would constitute has to be based on the kind of broad, universal consensus in moral thinking that would be readily apparent were, for example, the reasonableness of slavery (also a fully sanctioned Biblical institution) to come up for discussion. The job of rabbis, I believe, is not to force specific issues, or not unduly to force them, but to guide others in their own moral development. We need to talk about this, to flesh out how exactly we feel, to ask ourselves why we feel the way we do…not vaguely but precisely, not self-referentially or solipsistically, but in terms of the greater good that is always served when people seek to improve itself ethically. Moral development, as I wrote last week, is never simple or easy. It happens, obviously. But only slowly…and only incrementally.

I welcome the chance to air these issues with you all, to talk more, to learn more from discussing and learning about these matters together. This is the sacred task, then: not deciding in advance how we feel and then attempting to justify those priorly decided upon opinions, but to study together, to reflect, to debate, to join together in prayer and in focused dialogue…to find our moral bearings in a world that values that kind of undertaking (at least most of the time) only formally and rarely with more than minimal enthusiasm. (November 21, 2008)