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.
- 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. ↩
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. ↩
- By “State” I mean both individual states and the federal government. Ambiguity in this regard apparently confuses some people, but I digress. ↩
- 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. ↩
- Terms are from Dr. Jeffery Gurock’s Accommodators and Resistors: Varieties of Orthodox Rabbis in America, 1886-1983 (PDF) ↩