Rethinking Same-Sex Marriage

A few weeks ago I mentioned from the bimah that I wanted to re-open the discussion of same-sex marriage at Shelter Rock. Partially, I’m only being practical: now that same-sex marriage is legal in New York State, it is only a matter of time before we are approached by a gay couple interested in making their wedding in our sanctuary and it is only prudent for the community to develop its stance on the issue before we are confronted with specific people who ask a simple question and would like a simple answer in response. But I am also responding to recent developments within our Conservative Movement, and specifically to the approval on May 31 by the Committee on Jewish Laws and Standards of the Rabbinical Assembly of a responsum by Rabbis Elliot N. Dorff, Daniel Nevins, and Avram I. Reisner that suggests various ways in which same-sex unions could be solemnized in a way in keeping both with spirit and the letter of the halakhah.

It’s a complicated issue and I find myself impatient with people who insist otherwise: no matter where anyone stands on the issue, it seems—to say the very least—naïve to describe the Dorff-Nevins-Reisner responsum as anything but revolutionary. And, as should be the case with all dramatic steps forward any given society or group within society takes, the revolutionary nature of the proposal demands that we move forward warily and cautiously, carefully considering the implications and possible ramifications inherent in taking any of the paths that suddenly lie open before us.
Many Shelter Rockers have expressed themselves to me on the topic already, including people who feel very strongly on both sides of the issue. And, of course, they are not alone: the question of the reasonableness and legality of same-sex unions is already a major policy issue in the presidential campaign and will no doubt continue to engage all sorts of people, gay and straight, for the foreseeable future. It even seems likely that the Supreme Court will eventually become involved as well. So we’re not alone at Shelter Rock in feeling challenged to formulate an opinion on the matter in general, and a formal policy for our congregation in specific.

Before I express myself in more detail on the issues that I consider worthy of debate in this regard, I would like to suggest we abandon several lines of discussion that regularly, at least in my opinion, distract people from considering the actual issue that rests at the heart of the matter.

Of these, the least productive is basing the discussion on the question of whether there should be gay people in the world. To my way of thinking, one of the givens of the conversation has to be that there are gay people in the world and that the issue at hand is therefore whether they should or should not be entitled to marry, not whether the world would be a better or a less good place if people had less varied tastes in sexual matters. What kind of a discussion would that be to have anyway? More to the point, I think it is reasonable to suppose that there has always been a percentage of the population that, constrained from self-defining openly or not, has always been homosexual. And I think that even despite the confusing fact that the word “homosexuality” itself was only devised in the nineteenth century and that no classical language, including ancient Hebrew, has a word to denote the concept of what moderns call “homosexuality” or a name to label people moderns would reference as “homosexuals.” I’ve read a few books about the history of human sexuality that have attempted to explain why a feature of human society that strikes moderns as so self-evident and obvious somehow resisted categorization for centuries, but I haven’t found any of what I’ve read to be especially convincing. Still, the question before us cannot be whether it was wise or unwise for God to have made different varieties of human sexual orientation, but merely whether or not we wish to offer the possibility of long-term, faithful relationships respected in law and by society to people for whom heterosexual marriage is not an option.

The next red herring I think we should abandon is the ever-popular argument that we should endorse same-sex marriage because homosexuality is not a life-style choice that gay people make, but something hard-wired that can be resisted and repressed, but not materially altered through the sheer force of active decision-making. That surely is true, I’m sure, but it isn’t relevant because there are all sorts of behavioral patterns that people clearly do not choose, but that we as a society specifically do choose not to legitimize or endorse. So to say that gay people should be allowed to marry because they didn’t choose to be gay seems to be a pointless argument, something that would only make sense if it were part of a larger argument justifying all behavior to which those who engage in it are honestly drawn. The legitimacy of same-sex marriage cannot therefore be allowed to rise or fall on the question of whether people can choose their sexual orientation.

And, finally, I think we should agree not to allow the discussion to center on the famous verse from Leviticus that prohibits a man from lying with another man “in the manner of men lying with women.” Over the years, there have been many efforts to explicate those words along many different avenues of interpretation, but the simplest explanation is simply to take them to prohibit the kind of intercourse between men that is the most obviously analogous to the most common form of sexual intimacy between men and women. Discussing whether the Torah chose wisely in forbidding that single act also seems to me a pointless discussion: observant gay men will observe the law and others will not, just as observant heterosexual couples obey laws delimiting their own intimate lives even though other couples do not. But to take that thought and argue that that prohibition of Leviticus ipso facto makes ridiculous the question of same-sex marriage being legitimate seems a dramatic overstatement of the situation. One could, after all, argue just to the contrary: that by including in its list of sexual prohibitions one single one that affects male-male couples the Torah is in effect saying to gay couples, or at least to male ones, that they too are invited to find a path forward to spiritual communion with the God of Israel through fidelity to the laws of the Torah.

By omitting all the above-mentioned lines of argumentation from the discussion, we are, I think, left with two relatively simple questions before us.

The first—whether we do or do not wish to endorse the rights of Jewish gay people to enter into permanent, monogamous relationships in synagogue ceremonies that will bind them together as loyal partners and loving spouses—is the easier of the two to answer. Since I myself grew up wanting very much one day to marry, to have children, to live in a dignified, loving home, and to be a respected member of our Jewish community, it doesn’t seem at all odd to me that other people, and specifically other Jewish people, would want those same things in their lives. If anything, actually, it seems peculiar for me to imagine people wanting anything less from life. Nor does the fact that a specific individual might be gay seem relevant in any meaningful way in this context: what could sexual orientation have to do, really, with the desire to live in a dignified relationship characterized by loyalty and respected by the community as binding and real?

The second question—how exactly gay people can marry without the concept of marriage itself being altered in the process beyond recognition—is the more vexing. And it is this specific question that the Dorff-Nevins-Reisner responsum addressed. It is a complicated piece of writing. (If you are reading the electronic version of this letter, you can access the responsum in its entirety by clicking here.) But the broad strokes, at least to me, are as compelling as the details: the authors have come up with a way formally and respectfully to solemnize the commitment of same-sex couples to each other by sidestepping entirely the issue of whether the Torah’s concept of kiddushin between a man and a woman can be expanded to include same non-heterosexual couples. It sounds so simple when put in those terms. But, in my opinion, the responsum displays courage and originality most of all because of that specific aspect of its authors’ efforts.

In our American Jewish culture, we informally refer to kiddushin, the sanctification of a couple’s relationship through formal ritual, as marriage and the ceremony that establishes it as a wedding. For example, we call a couple’s rings “wedding bands,” or “wedding rings,” not kiddushin bands or rings. We refer to the k’tubbah as a marriage certificate, even though it has to do only with kiddushin and not with the “real” marriage that follows. We refer to the chuppah as a wedding canopy, although what takes place beneath it is kiddushin, not marriage per se. But it was the clever insight of Rabbis Dorff, Nevins, and Reisner to realize that kiddushin is merely the Torah’s way of preparing the path for couples on their way to nissu’in, to marriage, by requiring them to renounce other partners, to pledge their troth to each other absolutely and unconditionally, and by requiring them publicly to announce their intention to live together as married spouses. And, therefore, that—and here is the truly innovative part—it should be possible to consider other paths forward for other couples to follow on their way to marriage as loving, committed spouses. Wasting time worrying about whether the definition of kiddushin can reasonably be expanded to include same-sex couples is a debate from which no definitive answer seems likely ever to emerge. The authors of the responsum, therefore, had the idea of simply leaving the question unanswered, then of making the whole issue an irrelevancy by proposing alternate kinds of arrangements that can just as reasonably and reliably lead forward to marriage. The responsum then moves on specifically to suggest a number of such paths.

In another posting, I hope to describe those paths to you in detail. None is perfect. All have things to recommend them and not to recommend them. Basically, though, they are all variations on the same theme and what they all do have in common is the desire to create an unassailably legal context in which same-sex couples may formalize their commitment to each other against a background of fidelity, dignity, mutuality, and reciprocity—the same foundation stones upon which any successful heterosexual marriage will also be based. None requires the officiant or the participant to violate any principle of halakhah or to ignore any of the foundational principles of our Jewish faith. None requires any halakhic doubletalk or any complicated rationalization to sound cogent. And, more to the point, none has at its core anything other than the simple desire to deliver to same-sex couples a simple series of messages. We accept you as you are. We respect you for your commitment to each other. We find nothing peculiar in your desire to live out your lives in dignified, loving relationships. And we welcome you unambiguously and warmly as members of our community. When it comes down to it, which of us would not want all of our children, gay and straight, to hear that message reverberating in their ears loud and clear as the chart their course forward through life?