The Existential Religious Challenge of Same-Sex Marriage

I'm not a coward, I've just never been tested.
I'd like to think that if I was I would pass.
Look at the tested, and think there but for the grace go I.
Might be a coward, I'm afraid of what I might find out.
The Mighty Mighty Bosstones, “The Impression That I Get”

With the recent US Supreme Court decision Obergefell v. Hodges declaring same-sex marriage to be a constitutionally protected right, religious organizations are understandably concerned as to how they will be affected by this new legal reality.  In addition to public statements issued by The Rabbinical Council of America and the Orthodox Union, several rabbinic colleagues have expressed similar concerns shared by other religious leaders regarding what this ruling might mean for their own practice, particularly if they will now be forced to officiate or facilitate a practice which violates their religious beliefs. 1

Aside from these concerns over government interference in religious affairs, the Supreme Court’s ruling may have more salient ramifications on a communal level. Specifically, with same-sex marriage legalized nationally, Orthodox homosexual couples may be more likely take advantage of the benefits such legal recognition provides. This new reality may create new tensions within communities where such couples may expect or demand religious recognition for their union.

While these concerns are currently dominating the discussion, my sense is that the attention is misplaced. I do not mean to be dismissive of the concerns of others, but I suggest the details are not nearly as significant as the underlying existential tensions.


With the explicit disclaimer that I am neither a lawyer nor a legal scholar, it seems to me that there is a useful precedent parallels our current concerns in the form of intermarriage.  Both types of marriage are legally recognized by the American legal system while being prohibited according to Jewish law. 2  Intermarriage has of course been a legal reality for substantially longer, and to the best of my knowledge, no Rabbi has ever been sued for refusing to officiate an intermarriage nor has the State 3 ever coerced a Rabbi to do so.

I would also suggest that intermarriage may serve as a useful starting point for how Orthodox synagogues address gay couples in their synagogue.  For example, given that the marriage violates Jewish law, synagogues may choose not to announce or give formal recognition or acknowledgement to the union.  On the other hand, unlike intermarriage, both members of the couple are Jewish individuals, and as such have more latitude regarding integration in the community. This factor is particularly important for Orthodox gay couples who adopt children with the intent of raising them to be observant Jews.

I am not nor have any intention to issue any halakhic opinion; as always it is the job and responsibility of each appointed Rav to determine the policy for his community.  Rather, for those who are wrestling with the ramifications of new legal reality, I suggest the precedent of intermarriage as a halakhically forbidden union may provide a useful paradigm for addressing the difficult questions resulting from the new legal reality.

But addressing social realities from a halakhic perspective has never been a deficiency in Judaism. I do not mean to say that details are never complicated, but we have innumerable pages of responsa and commentaries devoted to these sorts of discussions.  What can sometimes be missing among the technicalities is an attention to the social, psychological, and pastoral needs of a community which often go unaddressed and unheard among the shouting.

For one example, consider a city clerk tasked with marrying anyone who registers belonging to a faith which objects to same-sex marriages. That individual is now faced with a choice: either compromise one’s faith or find new employment.  In the grand scheme of religious history, his is by no means a “new” dilemma. Jewish immigrants were often forced to choose between observing Shabbat and maintaining employment. 4

The past decades have seen unprecedented advancements in terms of religious accommodations in the workplace to the point where we now take many policies for granted.  Many religious traditions valorize some “sacrifice” in the name of one’s faith, but these are usually reserved inspirational stories about other people, and often historical mythic figures.  Anecdotal incidents do occur, but my sense is that on the whole religious people in today’s society have not only been protected from a situation of sacrifice, but have been for so long that such protection has become an expected entitlement.  Perhaps such security ought to be the norm in a society which in part defines itself by freedom of religion, but the ultimate responsibility for religious observance and its consequences are not borne by the state, but by religious individuals.  Depending on the profession and circumstance, Orthodox Jews may once again be faced with choices once long forgotten to our history.

In addition to the professionals among the laity, the Orthodox leadership will be faced with choices of its own, particularly those affiliated with “Modern” Orthodoxy and its variants.  Whereas the more parochial elements in Orthodox Judaism “resisted” integration with the secular society, others sought some form “accommodation.” 5  Over time, embracing integration with the secular world became one of the core differentiating characteristics of Modern Orthodoxy.

The stability of this relationship depends in part on the degree of fluctuations; as one moves the other must follow and compared to incremental, gradual shifts, the ramifications of drastic, abrupt changes will be felt immediately and acutely.  Another component is the degree of existential investment. The more one’s person identity is defined by integrating or synthesizing religion with the secular world, the more tension will be felt when new realities generate incompatibilities.  While an equilibrium may be eventually reached, some point a choices must be made between two conflicting systems.

Many Orthodox Jews have become so accustomed to social homeostasis that they have become complacent, unaware that such tensions could ever arise. The challenge of choices is that they provide a “moment of truth,” where having walked a tightrope between two worlds, the decisions made in response to these conflicts reveal our true priorities and allegiances.

For those who live with relative clarity, the Supreme Court’s decision provides an opportunity to communicate those ideals. But those used to living in in the grey, comfortably existing in ambiguity, may find themselves compelled to finally come to terms with what they truly believe. Not only is this process intimidating in its own right, but I suspect people may not be entirely comfortable with the answers they may find.

Notes:

  1. In 2011 when New York was about to legalize same-sex marriage, I argued that Orthodox Jews should not oppose such legislation but rather insist on religious protections.
  2. For the prohibition against intermarriage see B. Kiddushin 68b and B. Avoda Zara 36b. As to why same-sex marriage violates Jewish law, please see my post Why Same-Sex Marriage Violates Jewish Law.  For a brief summary, Leviticus 18:3 prohibits following in the “practices of the Egyptians.”  According to Sifra Achrei Mot 9:8, a source of legal exegesis, these practices included “האיש נושא לאיש והאשה לאשה” - a man would marry a man and a woman would marry a woman. For reasons explained in the post, it is my understanding that this would prohibit any ritual or ceremony which solemnizes the union.

    Since publishing that post, I have encountered two main objections which, while we are on the subject, are worth addressing here. The first argues that the verb “נשא” cannot refer to “marriage” because it is reserved specifically for the halakhic institution, which as discussed in the post, would be irrelevant in a homosexual context. However, in the legal syntax of Rabbinic Hebrew, the same word can be used to indicate both the status and the procedure, even when they are not compatible. For example, we find several instances of the form המקדש ב… אינה מקודשת - someone who “marries” in a certain way does not effect a halakhic marriage (For some examples of this form see M. Ketuvot 7:7, T. Kiddushin 4:4, B. Nedarim 47b, B. Kiddushin 6b).  In these instances, the verb קדש refers to the ceremonial actions taken, even though they are halakhically invalid.

    Another notable objection is found in R. Joel Roth’s 2006 responsa Homosexuality Revisited. R. Roth contends that “marriage” is only conceivable when there is a penetrative sexual act.

    In category two (woman to woman), where penetration is not possible and therefore the act cannot be called intercourse, the verb would be inappropriate. Hence, it is clear that the inclusion of lesbianism in the baraita cannot refer to “marriage,” while permitting sexual activity. For the baraita there cannot be “marriage” between women, so it must be prohibiting sexual activity (20).

    While R. Roth’s reading may be supported by Rambam Issurei Biah 21:8 which appears to equate marriage with intercourse, I do not believe he provides sufficient compelling evidence regarding what the Sifra “cannot” or “must” mean to redefine what the words actually say.

    Unrelated, but amusing to note nonetheless, the responses to this post and the one cited above were decidedly varied. The former resulted in me being branded, “an agent of the Gay Lobby out to destroy Agudah.”  The latter post was cited by a group to the far right of the Tea Party hailing me as one of the few “courageous” clergy standing up to the Gay Agenda. Go figure.

  3. By “State” I mean both individual states and the federal government. Ambiguity in this regard apparently confuses some people, but I digress.
  4. From stories I heard about the old Lower East Side, it was not uncommon for people to look for work every Sunday, having been fired for not working on the previous Shabbat. I was also told that the early Shabbat minyan at one of the local synagogues was specifically formed to accommodate those who went to work afterwards.
  5. Terms are from Dr. Jeffery Gurock’s Accommodators and Resistors: Varieties of Orthodox Rabbis in America, 1886-1983 (PDF)
Posted in Politics, Religion, Society. Tagged with , , , , .

The Simple Neglected Solution to Preventing Rabbinic Scandals

After yet another Rabbinic colleague's unrabbinic behavior makes headline news, the Jewish web once again finds itself flooded with indignation, recriminations, and general critiques of Orthodox Judaism - if not thinly veiled dissertations on the evils of religion and power. If the predictable pattern continues, in due time we will inevitably be about systemic changes which need to be made to revamp the entire religious society. This sound and fury of righteous indignation will produce little more than perpetuating already deeply held resentments, produce even less by way of substantive change, while mostly benefiting the loudest remaining survivors on the battle of the moral high ground.

I cannot speak for my Rabbinic colleagues, but each scandal (and subsequent backlash) is something I cannot help but take personally. I do not mean that I am in any way a victim, nor am I pleading for sympathy or understanding. It's personal for me in the sense that I have spent much thought, time, energy, and effort into perfecting the craft of being a pulpit Rabbi. This comes from years of growing up in a Rabbinic household as well as a brief but intense tenure at The Stanton St. Shul. To this day I still engage with colleagues and mentors about issues and strategies, not because I have immediate expectations to return to the Rabbinate, but because I take personal pride in the professional pulpit.

With this in mind, my interest today is not to defend the Rabbinate, but to improve it. To do so I would like to revisit one of my greatest grievances of the professional Rabbiante, about which I even devoted a class years ago. Specifically, in my opinion one of the most unconscionable oversights in Rabbinic education is the complete lack of attention and concern for the halakhic ethics of Religious leadership.
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Posted in Judaism. Tagged with , , , .

The Eighteen Minute Matzah Myth

Compared to Judaism's regular dietary laws, the rules for being Kosher for Passover are decidedly stricter. Not only is the punishment for consuming chametz the more severe karet (Ex. 12:15, 12:19), but the chametz is prohibited even in trace amounts (B. Pesachim 30a). Considering how strict the Jewish community is regarding keeping a kosher kitchen, it should not be surprising to find even more stringencies when it comes to the laws of Passover.

One problem we find with stringencies in Jewish Law is the tendency to confuse the additions with the actual to the point where being confronted with halakhic sources can be jarring to people who might not know any better. I wrote about one such example several years ago, and I recently came across another misconception common enough to be worthy of discussion.
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Posted in Jewish Law / Halakha. Tagged with , , , , , .

Ep 169 This Week in Daf Yomi Ketuvot 16-22 - Life Lessons From Jewish Weddings

This week in Daf Yomi, Rabbi Yuter discusses some life lessons learned from the Jewish wedding.

Ep 169 This Week in Daf Yomi Ketuvot 16-22 - Life Lessons From Jewish Weddings

Posted in This Week In Daf Yomi (TWIDY).

Ep. 168 This Week in Daf Yomi Ketuvot 9-15 - Confronting Insensitive Sugyot

The Talmud was clearly not written with modern day sensibilities in mind, which may lead to disturbing reactions from those who study it. Rabbi Yuter gives some examples from the previous week's Daf Yomi and discusses some approaches to handling these passages.

Consider this more of a beginning of a discussion than a definitive solution, and hopefully, guests can come on to share different perspectives (schedules permitting).

Posted in This Week In Daf Yomi (TWIDY).

Ep. 167 - Half-Year Aliyahversary!

In a rare personal podcast, Rabbi Yuter shares experiences from his first six months as an Oleh Hadash (new immigrant to Israel).

Posted in Podcasts.

Ep. 166 This Week in Daf Yomi Ketuvot 2-8 - Kol Demekadesh Ada'ata Derabbanan Mekadesh

Rabbi Yuter begins a brand new Podcast series called This Week in Daf Yomi discussing topics covered in the previous week's schedule of daily Talmud study. Today's edition discusses the ramifications of principle in Jewish law that all Jewish marriages are performed with the approval of the Rabbinic sages.

References are made to two previous podcasts: Understanding the Agunah Problem and Solutions to the Agunah Problem.

Comments welcome!

Posted in This Week In Daf Yomi (TWIDY).

Reviewing Rabbinic Oversight: A Response to Rabbi Jeffrey Fox

Rabbi Jeffrey Fox recently published a teshuvah regarding the presence of the male Beit Din at the mikvah immersion of a female convert. My response came out to over 20 pages with footnotes and formatting, which I feel would be as annoying to read as a blog post as it would be for me to transcribe it. As such I am posting my response in PDF format here and on Scribd. I strongly encourage readers to first consult R. Fox's teshuvah (PDF) in the original. I also reference and recommend reading Immersion, Dignity, Power, Presence and Gender by Rabbi Ethan Tucker.

Rabbi Josh Yuter - Reviewing Rabbinic Oversight a Response to Rabbi Jeffrey Fox (PDF)

Rabbi Josh Yuter - Reviewing Rabbinic Oversight a Response to Rabbi Jeffrey Fox

Posted in Jewish Law / Halakha. Tagged with , , , , .

Ep. 165 The Tradition of "Tradition" - Discussing the Archives with Rabbi Avraham Bronstein

"The world in which we live no longer permits us to reply to every doubt, 'This is the law,' or 'The Torah says so.' Indeed, very seldom in Jewish history were such answers sufficient. Nor were they considered desirable in a faith where proper answers always depend upon the right questions and where even Moses is depicted as constantly seeking, but never obtaining, complete understanding." 1

The Rabbinical Council of America recently released the archives of its journal "Tradition" to the public. For those interested in Modern Orthodox Judaism and the development, Tradition is an invaluable resource as a window into its intellectual history. With all the great articles to choose from, Rabbi Yuter welcomes special guest Rabbi Avraham Bronstein to discuss some of their favorites.

Here is the list of articles discussed, all links are in PDF format.

Josh's Picks Avraham's Picks
Lamm, Norman. "The Religious Implications of Extraterrestrial Life." 2 Tradition 7-8 (1965-1966): 5-56. Lebowitz, Yeshayahu. "In Defense of "Separation" in Israel." Tradition 2.2 (1960): 203-217.

Gan-Zvi, Israel. "Against "Separation" in Israel." Tradition 2.2 (1960): 218-236.

Soloveitchik, Joseph B. "Confrontation / Addendum." Tradition 6.2 (1964). 3 Geller, Victor. "How Jewish Is Jewish Suburbia?." Tradition 2.2 (1960): 318-330.
Leibowitz, Isiah. "The Spiritual and Religious Meaning of Victory and Might." Trans. Isaac Gottlieb. Tradition 10.3 (1969): 5-11. Rackman, Emanuel. "The Future of Jewish Law." Tradition 6.2 (1964): 121-131.
Tendler, Moshe David. "The Anatomy of a Responsum: The Kashruth of Vinegar Produced From Wine Alcohol." Tradition 22.4 (1987): 47-55. Wyschogrod, Michael. "The Jewish Interest in Vietnam." Tradition 8.4 (1966): 5-18.
Lichtenstein, Aaron. "The Israeli Chief Rabbinate: A Current Halakhic Perspective." Tradition 26.4 (1992): 26-38. Lichtenstein, Aharon, et al. "A Rabbinic Exchange on Baruch Goldstein's Funeral." Tradition 28.4 (1994): 59-63.

Shapira, Avraham, and Aharon Lichtenstein. "A Rabbinic Exchange on the Gaza Disengagement." Tradition 40.1 (2007): 17-44.

Lichtenstein, Aharon, and Avraham Yisrael Sylvestky. "A Rabbinic Exchange on the Gaza Disengagement, Part Two." Tradition 40.2 (2007): 49-70.

Other Referenced articles:
Frimer, Aryeh A. and Dov Frimer. "Women's Prayer Services - Theory and Practice." Tradition 30.2 (1998): 5-118.

Soloveitchik, Haym. "Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy." Tradition 28.4 (1994): 64-130.

Notable Theme Issues:

An Excel file (.xls) with a spreadsheet of every article in the Tradition archive is available here.

The Tradition of "Tradition" Audio

Notes:

  1. Sharfman, Solomon, J. "Forward." Tradition 1.1 (1958): 5-6. p. 5. R. Sharfman was a former president of the Rabbinical Council of America.
  2. Mistakenly filed in the archive as "Terrestrial Life"
  3. The original essay "Confrontation" was published in the cited volume pages 5-29. The Addendum was published in the compilation book A Treasury of Tradition.
Posted in Podcasts. Tagged with , , .

Processing Happiness - 7 Minute Sermon for Chayei Sarah 2014/5775 (Hebrew)

This past Shabbat I gave the Devar Torah in my parent's synagogue. Not only was this my first time since leaving my pulpit, but it was also the first time I had to speak in Hebrew. Although I've been in Ulpan for a few months, I'm still a long way off from being able to speak like a native, let alone infuse my usual sense of personality into my sermons. Thankfully, I did have help not only from Morfix but from friends who could not only correct grammar mistakes, but also assist with idioms and figures of speech. I take full responsibility for all errors.

The following text is from my working draft, though annotated with footnotes. Given my 7 minute time limit, 1 I had to use more "meivin yavin" textual references rather than provide actual citations.

Enjoy!

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Notes:

  1. I actually went 8 minutes.
Posted in Sermons, Lectures, and Divrei Torah.