Same-Sex Marriage (1)

A number of readers have asked me to comment on the success in California last week of Proposition 8, which overturned the California Supreme Court ruling that recognized the right of same-sex couples to marry. The first thing to note is that the results are not yet final. Indeed, the proposition passed by fewer ballots than the number of those that still remain uncounted…so when the final numbers are published in December it is at least slightly possible that the outcome will be different than it now appears. (Most commentators that I’ve seen seem to feel that would be a very unlikely outcome, however.) Regardless of how things work out eventually in California, however, I would still like to respond to our congregants who have asked me to comment.

As most of us surely know, same-sex marriage has been permitted in Massachusetts since 2003 and such marriages have taken place in Connecticut since the day before yesterday. Also, the states of Maine, Hawaii, Washington, Oregon, New Jersey, and New Hampshire offer same-sex couples some version of marriage, but without using that specific term to denote the legal unions in question. (This is also the case in the District of Columbia.) Same-sex marriages are not permitted to take place in New York, but Governor Patterson has formally directed all state agencies to consider such marriages as valid and legally binding if they were entered into in jurisdictions where they are permitted. Also worth noting is that forty-one of our fifty states have laws or constitutional provisions that formally prohibit same-sex marriage, Florida and Arizona being the most recent additions to the list.

Internationally, the situation is equally complicated. A majority of the world’s countries prohibit same-sex marriage. On the other hand, marriage between persons of the same gender is permitted in Belgium, Canada, South Africa, Spain, the Netherlands and, as of January, Norway. And about a dozen and a half countries, including France, Germany and the U.K., occupy the middle ground, offering same-sex couples civil unions that are akin to marriage, but which are not called by that name. For its part, Israel does not have same-sex marriage, but accepts all marriages performed legally elsewhere and this, presumably, includes same-sex unions performed abroad.

So where do we ourselves stand in all of this? On the one hand, our tradition is clear that the mitzvah of marriage involves the union of a man and a woman. I do not see how our tradition could possibly be read to suggest otherwise, so endorsing the concept of marriage between two men or two women would require a conscious decision to set aside tradition, a step we should only imagine taking for a truly compelling reason. Of course, there have been many instances in which we have done exactly that, setting aside traditional definitions or laws for the sake of endorsing an evolved morality. Scripture, for example, endorses the use of indentured servitude as a way of dealing with unmanageable debt. Slavery, bigamy, the sanctioned abuse of female prisoners-of-war, the execution of adulterers, Sabbath-breakers, and disobedient children—all these are part of our heritage…but not parts we choose to maintain, even formally. Indeed, all the above constitute parts of our heritage that we consciously chose to set aside once it became obvious that there was simply no way not to break with tradition if we wished to retain our sense of ourselves as moral men and women worthy of existing in a covenantal relationship with God. And within the fabric of that concept—that keeping faith with the covenant requires endlessly revising its precepts in light of our evolving sense of decency and morality—lies the secret of the eternal nature, and the eternal relevance, of Judaism and Jewish civilization. Nor is this some sort of modern approach to the nature of Judaism: the rabbis of ancient times themselves grounded this line of thinking in the verse from the Psalms (Psalm 119:126) that they translated to mean that there are time when serving God requires breaking with tradition.

So, in my opinion, the question isn’t at all whether the traditional Jewish concept of marriage is or is not meant to unite men and women in matrimony, which is certainly the case, but whether the exclusion of gay couples from the possibility of matrimony is something we consider so far beyond the pale of moral reasonability that we would find ourselves feeling more faithful to the covenant by abandoning our traditional stance than by upholding it. Moral questions are never simple! And the fact that the debate is so intense and so passionate merely points to the fact that, unlike slavery and the abuse of prisoners, the disenfranchisement of homosexuals is something that we as a people have apparently not yet decided unequivocally to define as a moral wrong, thus as a vestigial piece of antique culture we would do well to abandon. When Jewish people discuss the issue of same-sex marriage, it is in this key that they should be singing: not wasting time discussing whether or not sanctioning same-sex marriage is a break with tradition, but focusing instead on the real question at hand: whether permitting such unions constitutes a morally requisite step forward…or not.

I find myself in an ambiguous position. On the one hand, as an American I find all irrational discrimination repugnant. (Rational discrimination, of course, is in a different category and the difference should be clear. Not letting women vote is unreasonable. Not letting blind people drive is very reasonable. Both are forms of discrimination, but only one is rational.) Perhaps the real problem for Americans grappling with the issue is that marriage, historically and almost by its very nature, is a religious institution. By embracing the oxymoron of “civil marriage,” then, the government itself plants the seeds of an untenable situation. Personally, I think the government should get out of the marriage business entirely, offer some sort of civil union to all citizens who wish to live in pairs, and allowing the clergymen and women of all faiths to determine who may and who may not marry according to the tenets of their own religious traditions. That approach would solve both my problems. As an American, I would be pleased to see all citizens treated as equals. As a rabbi, I would be able to participate in a discussion framed not by extraneous details, but by the question that churns and roils at the center of the matter: would expanding marriage to include same-sex couples strengthen or weaken the covenant that defines us as moral Jewish people linked both to our past and our destiny by our willingness always to subjugate ourselves wholly to the rule of divine law?

As our understanding of the nature of human sexuality evolves, our understanding of what marriage is and could (and should) be will also evolve. This is not a bad thing at all…as any Darwinian will tell you, evolution is the key to survival. I don’t believe that we are quite there yet. (I mean, I don’t think we have come, not as a people and not as a movement, to the point in our moral thinking at which we can say unequivocally that the moral path is clearly to accept same-sex unions as valid. For one thing, that would require labeling those opposed to gay marriage as immoral people, a step I do not believe many, or even perhaps any, of us would feel reasonable taking.) Whether we will get there, I also can’t say. That too is not a bad thing: the nature of ethical development requires that morality be permitted to develop freely and without any effort to decide in advance whither it must or should lead us.

I have confidence in the Jewish moral compass. Without abandoning our sense of ongoing fidelity to Scripture, we have permitted ourselves to step away from many, many of its laws. As noted, this is our strength, not our weakness. And I believe that it will continue to constitute our secret weapon against desuetude, against irrelevance. The debate will and should continue. But regardless of how any of us might feel personally about the issue at hand, the willingness of our people never to rest on our laurels and to feel compelled endlessly and always to define and redefine our commitment to our own moral and ethical standards—that is the true path of Jewishness has it has evolved to our day and, I hope, as it continues permanently to evolve into the future. (November 14, 2008)