This post continues the weekly series on the Nishmablog that features responses on JVO by one of our two Nishma Scholars who are on this panel. This week's presentation is to one of the questions to which Rabbi Hecht responded.
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Question: If New York state is not forcing Jewish institutions to perform same-sex marriages, why are Jewish groups still against the gay marriage bill?
At the base of this question would seem to be an assumption that if Jewish individuals, groups or institutions are not imposed upon by a law, it is not their place, or there is no reason for them, to oppose this law. In terms of this specific case, it would seem that the one asking this question is assuming that since the New York state gay marriage bill will not cause any Jew to act contrary to his/her religious principles, there is no reason for Jews to oppose this law. Thus the question why a Jew would fight against this law. Is this assumption, however, correct? That is the real issue within this question.
Before commenting on this, we should, perhaps, first clearly outline Orthodox Judaism’s view of same-sex marriages. As is generally recognized, homosexual behaviour* is understood by Orthodoxy to be clearly prohibited by Torah law, both for Jews and for Non-Jews under the Seven Laws of Noah (the Noahide Code) which is deemed to be binding on all humanity. (In regard to this Code in general, see Maimonides, Mishneh Torah, Hilchot Melachim chapters 9 and 10; in regard to the specific prohibition regarding homosexual behaviour, see Halacha 9:5.) What many do not know, though, is that the institution of same-sex marriage is actually looked upon, within the literature, as an even lower form of immorality. See, for example, Rashi, Chullin 92b. See, also, Sifra, Acharei Mot 132 which includes same-sex marriages as practices of the Egyptian and Canaanite societies, deemed to be, by Sifra, Acharei Mot 131 and other sources, the most immoral of all societies. It is thus clear within the Torah literature that the practice of same-sex marriage is highly problematic.
Notwithstanding this moral position, is it still proper for Jews to attempt to impose this value – a value emerging from their religious perspective – on the general American society? There are two parts to this question. One is from the perspective of Judaism: should Jews care, halachically, about the moral practices of Non-Jews if such practices have no bearing on Jewish individuals or Jewish society? Presenting an argument that Jews do not proselytise, many people may answer with a simple ‘no’. The answer really is not so simple. While Jews may be restrained in promoting Non-Jews to convert to become Jews, Jewish thought may have a different understanding of the attitude Jews should have in regard to promoting the observance of the Noahide Code amongst Gentiles. Maimonides, Mishneh Torah, Hilchot Melachim 8:10 seems to clearly outline an obligation upon Jews to promote observance of the Noahide Code amongst Non-Jews. Rabbi Michael Broyde, The Orthodox Forum: Tikkun Olam, The Obligation of Jews to Seek Observances of Noahide Laws by Gentiles: A Theoretical Review, however, maintains that Maimonides’ view actually represents a minority position and that the majority of scholars do not perceive an obligation. This, however, does not mean that there is still no religious value in promoting observance of the Noahide Laws amongst Gentiles. One of the important defining characteristics of our forefather Avraham was that he did spread the knowledge of God and the observance of His ways throughout his world. See, for example, Rashi, Bereishit 12:5. It would thus seem proper for Jews to, at least, be concerned about the moral values of the general world and, to some extent, promote values of a universal nature found within the Torah.
There is, however, a second part to this question and that concerns the promotion of Torah values within America which prides itself on the value of freedom of religion, a value that has also served the Jewish community well. There are again two parts to this sub-question, one - the theoretical, the other - the practical. These are both most complex issues and even a preliminary investigation of these matters would be too extensive for this forum. Yet, if we consider the original question, the demand was not to decide whether Jews should be actively against the same-sex legislation or not, but rather to explain why would various Jewish institutions continue to be against it when Jews will not be forced to violate their principles thereby. This question can be answered more concisely. The above sources clearly show that there is a strong view within Jewish thought that Jews are to be concerned about the moral behaviour of Gentiles as defined by the Noahide Code. As such, it should not be surprising to find Jews who would challenge a law clearly contrary to this Code.
The problem, though, is the practical side of this issue. Is it not dangerous to the furtherance of Jewish life in this society to attempt to impose our values on the society for could this not lead to another group attempting to impose their values on society at our expense? If we attempt to stop gays from marrying because of our values, even though it would seem that such behaviour does not actually directly affect us in any way, what argument could we have against individuals attempting, because of their values, to prevent the circumcision of children, terming it ‘male genital mutilation’, even though it does not personally affect them? The very idea of freedom of religion is the allowance to let others follow their value constructs (within certain parameters) – and such a standard has served the Jewish community well. It is actually well known that Rabbi Moshe Feinstein maintained that protecting the Jewish community’s ability to practice Torah in an unhindered manner is more important than siding with a position that may be more in line with our universal ethical standards yet may also possibly hinder this ability. It is for this reason that Rabbi Feinstein instructed Jewish institutions to side with the Pro-Choice camp in the abortion debate because this position will enable Jews to make any such decision with a consideration solely of the halachic criteria while the Pro-Life position may impose other value determinants, contrary to the Halacha. (I am sorry, while this decision is well known and I have heard it stated numerous times, I do not have a non-oral source for it.) So is there not a practical concern with challenging this law given its present parameters?
Those who continue to oppose this law, however, believe that this is precisely the point. Who is to say that the present limitations on the extent of this law will continue into the future? There is a concern that as a moral standard in opposition to Torah strengthens, there is a possibility that these new standards could lead to an eventual direct imposition on Torah standards. When one hears gay activists comparing religious opponents to same-sex marriage to Southern Baptists in the first half of the eighteenth century who opposed the abolition of slavery, this concern would seem to be very real. There is also another concern that the advancement of these values could change the societal milieu, creating subtle and indirect yet problematic circumstances for observant Jews. As such, it is difficult to fully maintain that the advancement of the values in support of same-sex marriage could not eventually be harmful to the lifestyle of Torah committed individuals and their families.
Opponents of same-sex marriage also contend that they are careful to frame their arguments within the context of general moral structures and not Torah per se. In this regard, they maintain that, while they are promoting their religious values, they are, as citizens, simply entering into a general discussion that concerns society as a whole. The issue of when such arguments cross the line of challenging freedom of religion and when they are simply part of the general discussion of a society’s mores is hard to define. Nonetheless, it can be expected that one voicing an opinion in the context of society’s standards will be affected by his/her background and tradition, and the call to discount this reality is simply unrealistic. My objective in this answer is not to express my view on the issue but simply to offer a possible Torah reason for continuing to oppose same-sex marriage. They maintain that, if done in a proper fashion, their opposition is an expression of their Jewish values and in the protection of their rights while simultaneously not challenging their parallel commitment to America’s standard of freedom of religion.
* It should be noted that, technically, one could contend that this statement actually only applies to male homosexual behaviour and that my ensuing arguments are not, as such, applicable to lesbianism. To be honest, there is some basis to this argument yet there is also no doubt that lesbianism is clearly looked upon negatively by the Torah as well. See, for example, Shulchan Aruch, Even HaEzer 20:2. The technical discussion of the distinction in Halacha between male and female homosexuality is, however, an extensive topic in itself and beyond the specific parameters of this issue. As such, we will not elaborate upon it. It is sufficient for our purposes to outline, from these sources, the general attitude to homosexuality and same-sex marriage within Orthodoxy, so that we may respond to a question that touches upon how we are to maintain our ethical viewpoint on this subject in a world in which the general attitude is changing.