It’s a tough time for those of us who persist in believing that our religious tradition is a better guide to morality than is The New York Times editorial page. A week and a half ago, the New York State Senate narrowly approved a bill, which had previously passed in the Assembly, to legalize same sex marriage in this State, making New York the sixth state (plus the District of Columbia) to do so. Governor Andrew Cuomo, who had pushed hard to get this bill through in the hectic last days of the legislative session, signed it quickly, as if afraid that the Senate might change its mind. A few days later, Rhode Island’s legislators passed up the opportunity to make their state the seventh to allow same sex marriage, instead choosing to pass a bill allowing for civil unions. It’s a measure of how quickly the same sex marriage juggernaut has picked up steam that a state’s adoption of civil unions, which would have been seen a mere decade ago as a radical step toward same sex marriage, today counts as a victory for those trying to slow the same sex marriage momentum.
Yes, I know. Wherever same sex marriage has been put to a popular vote, it has lost. The states that have adopted it thus far have done so either by legislative act or by judicial fiat. But polls are showing a fairly rapid shift in public sentiment. The majority of Americans would still prefer that marriage be limited, as it always has been, to heterosexual couples. But that’s no longer true everywhere – polls suggest that a majority of New Yorkers agreed with their legislature’s decision – and how long it will be true nationally is anyone’s guess.
As a practical matter, moreover, the precise extent of the shift in public opinion may not make much difference. Ours is a representative democracy in which most decisions are made by elected representatives. Though a few states – California, most prominently, but more on that later – have extensive provisions for voter initiatives, government by plebiscite for the most part has not been a significant facet of the American political tradition. (Whatever its effect on this particular issue, America’s historical reliance on representative democracy is a good thing. Government by mob, as a rule, is not a pretty sight.)
Do halakhically committed Jews have a dog in this fight? Some have argued that we don’t, that the fight to stop the march toward same sex marriage should not be a Jewish fight. A halakhic marriage can only take place between a man and a woman, but those parameters, the argument goes, are beyond the control of secular politicians. Legislative action can only affect the civil status of the parties’ relationship, which has no halakhic significance. Since Jews are a small minority in this country and halakhic Jews are a far smaller one, there is no religious imperative for halakhic Jews to get involved, and no obligation to draw on our community’s limited resources (not just money, but time, moral stature and political influence) to fight against same sex marriage in the larger, predominantly non-Jewish society.
I find this argument unconvincing. It is undisputed in the classical Jewish tradition that male homosexual relations fall within the category of gilui arayot (sexual immorality) as prohibited by the sheva mitzvot bnei Noach, the seven commandments given to Noah and binding on all humanity. (It is also undisputed that adultery falls within that category, which implies that, at least for non-Jews, civil marriage has some halakhic significance.) While Diaspora Jews are not halakhically obligated to force those seven mitzvot on the non-Jewish societies in which we live, those mitzvot surely express the Torah’s ideal moral guidelines for all human beings. Same sex marriage, being contrary to the essential purpose for which God created human beings male and female (see Gen. 1:27-28, 2:18-24), falls short of that minimal level of morality.
When the Jewish people first went into exile, the prophet Jeremiah instructed them to “seek the welfare of the city to which I have exiled you and pray to the Lord in its behalf, for in its prosperity you shall prosper.” (Jer. 29:7, JPS translation) We usually think of this prophetic instruction – when we think of it at all – as applying to the material welfare of the societies of which we are part, but surely the moral welfare of those societies is at least equally important. Historically, Diaspora Jews did not involve themselves in issues relating to the moral well-being of their host countries for the obvious reason that, in all pre-modern societies, and many modern ones, Jews have been at best a tolerated minority whose involvement in such matters would have provoked resentment, if not outright persecution.
In modern democratic countries, by contrast, and particularly here in America, Jews participate in the political process as citizens on equal terms with all others. We owe hakarat hatov (gratitude) to this country for the unparalleled opportunities, both economic and political, that it has given us, and surely it would be inconsistent with that obligation for us to profess indifference our country’s moral well-being. Moreover, we cannot ignore the unfortunate but undeniable fact that many if not most of the ninety percent or so of American Jews who are not committed to Halakha are more likely to derive their moral principles from the secular society around them than from the wisdom of the Jewish tradition. The moral tone of American society affects all its citizens, Jews and non-Jews alike, and is thus unavoidably our concern.
But while halakhic Jews have a moral obligation, even if not a strictly halakhic one, to oppose same sex marriage, we are not required to place such opposition at the top of our political priority list, nor are we obligated to continue that opposition once it has clearly become an exercise in futility. There is no obligation to bang your head against a brick wall in the vain hope that somehow, against all odds, the wall will give way. So the question that we need to answer now is this: in light of recent developments, particularly the action of New York’s legislature, does further opposition to same sex marriage in the political sphere have any realistic hope of success, or has that battle, for all practical purposes, already been lost?
Since none of us today has the gift of prophecy, we cannot definitively answer that question. All we can do is to use the available information and our God-given intellects to make the best guess that we can. The give and take of representative democracy usually results in decisions that, on any particular issue, favor those who feel most passionately about that issue. It has become readily apparent since the Supreme Judicial Court of Massachusetts jump-started the issue in 2004 that most supporters of same-sex marriage feel more passionately about it than do most of its opponents. Many who vote against same sex marriage when it appears as a ballot question do so less out of principle than out of vague feelings of discomfort, and that discomfort has diminished considerably, particularly in the younger age cohorts, over the last few years.
Increasingly, when same sex marriage becomes a focus of legislative attention, public pressure comes primarily from those supporting it. That was certainly the political dynamic in New York’s legislature; fence-sitting state senators were flooded with constituent communications on the issue, the overwhelming majority favoring it. In some cases, moreover, in New York as elsewhere, constituent pressure has been augmented by pressure of a more personal kind, as wavering legislators have also been approached by family members or close friends who would benefit directly from the proposed legislation.
A somewhat different dynamic would have brought the same result in California, except for that state’s long tradition of voter initiatives. When the California Supreme Court , in 2008, ruled that the state’s constitution required the state to permit same sex marriage, the voters adopted, as an amendment to that constitution, Proposition 8, which affirms that “[o]nly marriage between a man and a woman is valid or recognized” in that state. That electoral victory for opponents of same sex marriage was a fairly narrow one (52% to 48%), however, and resulted in substantial part from a last minute push by the Mormon Church. Considering the small margin of the victory and the changes in public attitudes since then, opponents of same sex marriage cannot be optimistic as to the result if that electoral test were repeated today. So far, however, the pro-same sex marriage forces have not attempted a voter-initiated repeal of Proposition 8, choosing instead to proceed with a federal constitutional challenge, which, if successful, could resolve the issue nationally.
The battle over same sex marriage will continue on three fronts at once: the political, the judicial and the cultural. The political battle will mostly take the form it did in New York, lobbying legislators to approve same sex marriage through the ordinary legislative process, with occasional resort to voter initiatives where permitted. Obviously, as the New York experience shows, the pro- same sex marriage forces will have a significant tactical advantage in those states whose governors are sympathetic to their cause.
Judicial challenges in individual states, in which litigants ask those states’ highest courts to hold that denying the “right” to marry a same sex partner violates the state’s constitution, will no doubt continue, at least in those states whose constitutions lack specific provisions defining marriage. More important, though, are two potential judicial game-changers. The first one, mentioned above, arises out of the Proposition 8 vote in California and seeks a straightforward holding that the failure to permit same sex marriage violates the Equal Protection Clause of the Fourteenth Amendment. Given the current composition of the Supreme Court, the odds clearly appear to be against such a result.
It is harder to predict the results of the other judicial test, the pending challenges to the federal Defense of Marriage Act (DOMA). That legislation, enacted by Congress in 1996 and signed into law by President Clinton, contains two substantive provisions, one excluding same sex marriages from recognition for all federal purposes (e.g., immigration, tax returns, social security benefits) and the other affirming the right of a state that does not permit same sex marriage to refuse to recognize such a marriage if contracted in a state where it is permitted.
What makes the result of the DOMA-related litigation more difficult to predict is that it involves the relative powers of the states, where marriage-related issues have traditionally been decided, and the federal government. Several Supreme Court decisions in recent years have sought to prevent federal encroachment on state prerogatives. The unusual twist on this issue is that the Justices who have been most deferential to state prerogatives are those likely to be least sympathetic to same sex marriage. How Justices on both sides of those debates will respond to this unusual interplay of issues remains to be seen.
From a religious perspective, the political and judicial aspects of the same sex marriage debate are ultimately subordinate to the cultural aspect. There is no transcendent religious significance to the particular bundle of rights, privileges and obligations that civil society accords to those it deems married. What should rightly raise religious concern is how legislative and judicial actions both reflect and affect the way citizens view the moral issues involved – and it is precisely that cultural shift whose rapidity has been most startling.
That shift, to be sure, has not been quite as rapid as might appear at first glance. Our society’s perspectives on sex and marriage have been slowly, almost imperceptibly, changing for decades. Marriage, increasingly, is not seen as a fundamental institution which is a building block of civil society, but rather as a lifestyle option that brings with it certain legally defined rights and obligations. For those who view marriage that way, the argument put forth by the supporters of same sex marriage has an obvious appeal. If marriage is merely the sum of its legal rights and obligations, then why should we deny it to same sex couples?
We can only respond to that challenge convincingly by restoring a broader view of marriage. Our society must once again come to recognize marriage as an institution woven into the very fabric of Creation, a reflection of the principle, articulated by God Himself, that “[i]t is not good for man to be alone.” (Gen. 2:18, JPS translation). Civil law alone cannot effect such a restoration. It is the institutions of civil society, especially though not exclusively its religious institutions, that must take the lead in that process. To do that, religious institutions must remain true to the wisdom of their own traditions and not succumb to the moral fad of the moment.
If there is a silver lining in the New York legislature’s action, it is in the wording changes obtained by the swing legislators before approving the bill. Those changes were intended to protect the right of religious institutions to conscientious dissent from the state’s endorsement of same sex marriages, thus preserving the ability of those institutions to continue fighting the cultural battle even if the political battle has been lost. We can only hope that, if our society’s political institutions continue down their current path, its religious institutions, both Jewish and non-Jewish, will take up the challenge.
Douglas Aronin
