On May 23 2011 several prominent Orthodox Jewish organizations issued a joint statement declaring their opposition to legalizing same sex-marriage. The brief statement is as follows:
On the issue of legalizing same-sex marriage, the Orthodox Jewish world speaks with one voice, loud and clear:
We oppose the redefinition of the bedrock relationship of the human family.
The Torah, which forbids homosexual activity, sanctions only the union of a man and a woman in matrimony. While we do not seek to impose our religious principles on others, we believe the institution of marriage is central to the formation of a healthy society and the raising of children. It is our sincere conviction that discarding the historical definition of marriage would be detrimental to society.
Moreover, we are deeply concerned that, should any such redefinition occur, members of traditional communities like ours will incur moral opprobrium and may risk legal sanction if they refuse to transgress their beliefs. That prospect is chilling, and should be unacceptable to all people of good will on both sides of this debate.
The integrity of marriage in its traditional form must be preserved.
This statement was issued not only by Orthodox institutions considered “right-of center” such as Agudath Israel of America or National Council of Young Israel, but also by more moderate Orthodox organizations such as the Orthodox Union (OU) and the Rabbinical Council of America (RCA).1 Unlike most religious proclamations which are directed towards specific religious communities, this joint statement advocates a political position – though based on religious principles – to the secular world beyond the normal scope of religious influence. To be sure, this joint statement is hardly the first time rabbinic organizations have issued political statements. Across all major denominations, the Orthodox RCA, Conservative Rabbinical Assembly, and Reform Central Conference of American Rabbis have all passed resolutions advocating public polices exemplifying their respective religious beliefs, with few (if any) complaining about the separation of church and state.
But due to the inherent subjective moral arguments against same-sex marriage, I argue that Jews – especially the Orthodox – would be better served in not opposing its legalization.
As I understand the joint statement, the argument against legalizing same-sex marriage is based on two approaches: 1. a general moral objection to redefining marriage and family and 2. the implications of legalizing same-sex marriage would necessitate for Orthodox institutions. I will discuss each of these arguments in turn.
To understand the moral objection, we must first need to consider the prohibition of homosexuality in Judaism, not as it relates to Jews as I have discussed extensively elsewhere, but Judaism’s expectation of non-Jews. According to the Jewish religious tradition, homosexuality would be prohibited for non-Jews under the Seven Noahide Laws, specifically regarding forbidden sexual relations:
Our Rabbis taught: seven precepts were the sons of Noah commanded: social laws; to refrain from blasphemy, idolatry; illicit sexual relations (mistranslated specifically as “adultery”); bloodshed; robbery; and eating flesh cut from a living animal (T. Avoda Zara 9:4, B. Sanhedrin 56a) [Emphasis added]
In addition to prohibiting certain relations, the Jewish religious tradition additionally abhors the act of sanctifying homosexual relationships through the act of marriage, even for non-Jews:
What did they [the Canaanites and Egyptians] do? A man would marry a man, a woman would marry a woman, a man would marry a woman and her daughter, and a woman would marry more than one man. For this it is written, “do not follow their practices” (Lev. 18:3) (Sifra Acharei Mot 9:8).
Ulla said, “these are thirty commandments which the children of Noah accepted upon themselves, but they only kept three of them: they did not write marriage documents for two men (i.e. legitimize homosexual marriage), they did not eat human flesh, and they honor the Torah” (B. Hullin 92a-b).
Despite the joint statement’s disclaimer that “we do not seek to impose our religious principles on others,” it is simply disingenuous not to assume that the moral arguments are motivated in religion. Indeed, the 2007 statement said as much explicitly:
We approach this issue through the prism of the Jewish religious tradition, which forbids homosexual acts, and sanctions only the union of a man and a woman in matrimony.[Emphasis added]
The current statement notably removes such overt religious motivations. But while it removes religious language, substituting “sanctity” for “bedrock,” the statement still fails to provide any justification for its proposition that “discarding the historical definition of marriage would be detrimental to society” without resorting to some form of religious morality. Unlike other controversial positions on abortion, environmental regulations, economics, or foreign policy which may all be defended by both religious and secular arguments, there does not seem to be a moral objection to same-sex marriage which is not somehow based in a religious tradition.
Of course, religious organizations have their legal right to advocate or oppose any policy which contradicts their religious beliefs, but I suggest that it is unwise if not hypocritical for the Orthodox to do so. The United States offers unprecedented and unmatched freedom for Jews to practice their religion,2 and I suspect these rabbinic organizations would contest any attempts to curb those freedoms. For example, male circumcision is an essential practice in the Jewish religion. Yet San Francisco and Santa Monica are both considering banning circumcision without providing religious exceptions. Circumcision opponents no doubt rely on their own subjective morality to impose their ethical standard in restricting the rights of others. I would expect that Orthodox religious organizations would no doubt view such a bill as an affront to their freedom of religion.
For another example, consider the laws pertaining to kosher meat. For an animal’s meat to be considered kosher according to Jewish law, it must be slaughtered through the process of shehita. Some animal rights activists oppose shehita as being inhumane and several countries have already proposed or passed legislation restricting the practice on moral grounds. Given that the Orthodox Union receives most of its funding through issuing kosher certifications, I suspect they would oppose any restrictions on shehita, even if based on the moral standard of ethical treatment of animals.
My point here is simple. Orthodox Jews who benefit greatly from the freedom to practice their religion should in no way impose their religious beliefs on others. Conversely, when a religious group seeks to restrict the rights of others based on its religious morality, it cannot contest when its own practices are threatened on the grounds of secular morality.
Aside from the moral objections to same-sex marriage, there appears to be a practical concern amongst these Orthodox institutions. Were same-sex marriage to become legalized, the Orthodox community “will incur moral opprobrium and may risk legal sanction if they refuse to transgress their beliefs,” though the joint statement provides no further elaboration or explanation. As noted above, the Orthodox Jewish community has successfully defended itself against other instances of “moral opprobrium” from secular moralists, and advocates for gay rights will continue to challenge the morality of the Orthodox position regardless of the legality of same-sex marriage.
I am also skeptical as to what “legal sanction” the Orthodox community may incur if same-sex marriage is legalized. If it refers to discrimination in hiring, Title VII of the 1964 Civil Rights Act provides exemptions for religious organizations:
2. Are there any exceptions to who is covered by Title VII’s religion provisions?
Yes. While Title VII’s jurisdictional rules apply to all religious discrimination claims under the statute, see EEOC Compliance Manual, “Threshold Issues,” http://www.eeoc.gov/policy/docs/threshold.html, specially-defined “religious organizations” and “religious educational institutions” are exempt from certain religious discrimination provisions, and a “ministerial exception” bars Title VII claims by employees who serve in clergy roles.
Religious Organization Exception: Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious.” Factors to consider that would indicate whether an entity is religious include: whether its articles of incorporation state a religious purpose; whether its day-to-day operations are religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether it is not-for-profit; and whether it affiliated with, or supported by, a church or other religious organization.
This exception is not limited to religious activities of the organization. However, it only allows religious organizations to prefer to employ individuals who share their religion. The exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability. Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races.
Ministerial Exception: Courts have held that clergy members generally cannot bring claims under the federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act. This “ministerial exception” comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority. The exception applies only to employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction. Some courts have made an exception for harassment claims where they concluded that analysis of the case would not implicate these constitutional constraints.
I am not a lawyer, but it does appear that a religious organization could be allowed to discriminate on the basis of sexual practices which violate its religious doctrines.
But perhaps the concern is that in hiring a gay employee, an employer would then be legally forced to support his or her spouse thereby obligating Jews to actively financially support a lifestyle which runs counter to their religious beliefs. However, the same argument could be made for any employee who does not adhere to the Jewish faith – including any non-religious Jew or even non-Jews. To the best of my knowledge no Orthodox Jewish organization is similarly concerned for their employees abstaining from the other biblically defined sexual “abominations” such as niddah or adultery.
Finally, even if same-sex marriage were to become legalized no rabbi would be obligated to officiate such a union. In my professional capacity, I have the freedom to decline to perform any marriage for any reason just as a couple is free to seek another officiant. Legalizing the rights of gays to marry in no way infringes on my rights as a religious Orthodox Jew.
To be clear, not opposing legalizing same-sex marriage is not the same as actively supporting it. It is my personal opinion not to support it due to my religious beliefs, but also not to oppose it due to my political belief in the freedom of religion. Were same-sex marriage to become legalized, I would not officiate any same-sex union. That is my right and freedom as an American to determine for myself the moral code by which I choose to live, even if it is based on a religion with which you disagree. Unless I can provide evidence or compelling arguments that an action causes harm, I cannot in good conscience deny that same right to others.
1. In the interests of full disclosure, let me state that like many congregations my synagogue is an OU member shul, and I am personally a member of the RCA and even presented at its most recent convention two weeks ago. However, the OU’s national position does not necessarily reflect the attitudes of all of its member synagogues, and, as this essay demonstrates, the RCA’s approval does not speak for all of its members.
2. This includes even Israel where the Israeli Rabbinate wields political power to impose its own religious standards on the general population.
