5/15/2012

Same-Sex Unions and Intermarriage: Against as a Jew, For as a Citizen

Cross-posted to the Times of Israel.

Though it is not a new dilemma, the issue of same-sex marriage took on became a larger topic of public conversation just this week, in the wake of President Obama's endorsement of same-sex marriage.
The dilemma had taken a personal dimension just a few weeks earlier, when I was invited to the same-sex wedding of two former students.
I am torn, but ultimately feel the same way about this that I feel about civil unions in general in Israel: while I am against them personally and religiously, I believe that the state should not impose specific religious values on individuals.
Jewish law, halakha, does not recognize intermarriage or same-sex marriage, and views sexual relationships between Jews and non-Jews and between members of the same sex as forbidden, even sinful.
In Israel, religious bodies (not just Jewish ones) have controlled marriage, divorce, and by extension have established the boundaries of their religious communities since the Ottoman Period. It is an anomaly in a secular state apparatus (though there are still some in the Rav ZY Kook camp who imbue the state apparatus itself with religious significance).
Yet although this has been the state of affairs here for centuries, there are many reasons for even halakha-observant Israelis to oppose state enforcement of these halakhic considerations.In fact, whether separation of religion and state is conceived as protection of religion from the state or the individual from religion, exclusive religious control of marriage should be abolished.
With regard to the protection of the individual from the state, it goes without saying that the current system of religious control violates individual rights. In 1964, the United Nations adopted a convention on marriage that recognizes marriage as a human right. Since Israel upholds human rights and even enshrines them in its Basic Laws, the fact that the right to marry and found a family is not universally applied is deeply inconsistent.
The other side of the religion-state coin - the protection of religion from state - offers an even more compelling case for changing the system. As a result of the rabbinate's intimate involvement with this aspect of state functioning, it has become a wholly political entity, and has resulted in a situation in which conversion to Judaism - a purely halakhic issue - is subject to broad political debate and legislation. The absurdity of a secular state getting involved in the business of religious conversion could end tomorrow if there were a civil marriage option that allowed halakhic Jews and halakhic non-Jews (who often are equally Jewish in terms of background and culture) to wed.
Furthermore, by insisting on holding onto a very thin slice of governmental power, the rabbinate dooms itself to a much more profound irrelevance and contempt. By winning the marriage battle, they lose the much broader war for the hearts and minds of Jews. Installing a civil option will, hopefully, help rehabilitate the image and restore the relevance of halakha to broader Jewish life in Israel.
Same-sex marriage falls under the same rubric: it is increasingly acknowledged as being worthy of protection as a human right, like all marriage, and once a marriage option that functions independently of religion is established, there would be no reason to exclude same-sex unions from it.
I hope one day to marry off all of my children by means of huppah ve-kiddushin, according to the law of Moses and Israel. But the task of educating children about the importance of these values belongs to parents and communities, not to governments.

14 comments:

Larry Lennhoff said...

The absurdity of a secular state getting involved in the business of religious conversion could end tomorrow if there were a civil marriage option that allowed halakhic Jews and halakhic non-Jews (who often are equally Jewish in terms of background and culture) to wed.
This seems like a non-sequitur to me. As long as conversion is the fast track to citizenship there is going to be some legitimate state concern about it.

goinggoinggone said...

Better it'd be to do away with any state sanctioned marriages, including religious ones. Marriage is a religious institution. The whole sanctioning by a secular state is and always was a bluff - like pretending Christmas trees were not religious symbols.

The time has come to involve the state ONLY in the enforcement of signed and legal contracts between two people. Those contracts can be to join forces and start families, and can govern their dissolution without the State passing judgment on who those contracts are between.

If the government chooses to give tax advantages to couples with certain contractual terms in their partnership contracts, or if companies choose to offer them joint health care - so be it. But it's only called "marriage" if a religion sanctions it, in my view.

Elli Fischer said...

Larry - the state will have to evaluate a potential citizen's Jewishness, but their criteria will have nothing to do with halakha - as in fact they don't now; this is why there are so many olim who are not halakhically Jewish.

GGG - now we're talking semantics. I'd call a same-sex union marriage but not hupa ve-kidushin.

Larry Lennhoff said...

If I set up the 'Universalist' Jewish movement, gave myself smicha, and sent conversion certificates over the Internet to anyone who asked, would you expect the state of Israel to recognise those converts? If not, then the state is getting involved in halachic questions.

BTW, there was a person who did that (except he didn't create a movement) who was active on Beliefnet for a few years.

Josh said...

I think the other piece of this is that the current system requires the secular state to employ (and thus endorse) religious officials. As an American Jew who is used to Jewish communal institutions that are inclusive of different streams of Judaism, watching the Israeli government endorse one particular version of Judaism is extremely alienating. Fewer religious decisions made by the secular state makes Israel more of a home for all Jews.

Josh said...

Larry - I think that you're oversimplifying here. You can have "legitimate state concern" about issues related to Judaism without the state "getting involved in halachic questions" - as long as the state makes decisions about Judaism on secular rather than religious grounds.

This is inevitable in any secular democracy - for example, courts are constantly making decisions about what's protected under religious freedom and what isn't. The point is that you decide these things in accordance with secular rules set by legislators and government officials, not by religious leaders.

Benjamin of Tudela said...

Not going to argue with the general gist, but only with this specific part:

:With regard to the protection of the individual from the state, it goes without saying that the current system of religious control violates individual rights. In 1964, the United Nations adopted a convention on marriage that recognizes marriage as a human right. Since Israel upholds human rights and even enshrines them in its Basic Laws, the fact that the right to marry and found a family is not universally applied is deeply inconsistent."

Legally you made quite a few jumps. The UN can recognize what it wants - it still does not define what a human right is or isn't. The relevant question would be whether Israel signed (and ratified) the treaty or not. At best a UN adoption (which btw isn't legally correct either) would only be an indicative of state practice.

Unknown said...

testing

Unknown said...

"Same-sex marriage falls under the same rubric: it is increasingly acknowledged as being worthy of protection as a human right, like all marriage..."

I am amazed at this statement. Do you think what Obama thinks is indicative of what the country thinks? Thirty two states have banned homosexual marriage. That's more than 60%, ie, what we call a supermajority. It includes North Carolina just last month, which was supposedly a "progressive" state. It also includes Oregon, which is suppsoedly a liberal state.

There are only five states that allow it, all of them in the same tiny corner of the Northeast. And to the best of my knowledge, none of these were actually decided by popoluar ballot (like the states that banned them) but were foisted on the states by their legislature.

It's asinine to wax pious about human rights here. How about the human rights of the majority, for crying out loud? It's not a religious issue (not that there's anythign wrong with that) it is simply a basic moral issue. Homosexual marriage is repulsive, and the fact that your students did it should no more weaken your resolve than if they jointly robbed a bank. Like I was mentored by some very wise lawyers, youre thinking about it too much.

DF

Josh said...

"Do you think what Obama thinks is indicative of what the country thinks?"

...yes? Isn't that generally how things work in a representative democracy? What exactly are you objecting to in the original post? Polling data has found a significant, steady increase in support for same-sex marriage over the last two decades. Recent polls have consistently found that we're about at the 50-50 mark nationally. If you have evidence to the contrary, I'd be interested in reading about it. (And I mean evidence about people, not states. The number of states that vote for something is irrelevant unless you happen to be in the US Senate.)

"There are only five states that allow it, all of them in the same tiny corner of the Northeast. And to the best of my knowledge, none of these were actually decided by popoluar ballot (like the states that banned them) but were foisted on the states by their legislature."

First, it's 6 states plus DC, and Iowa is not in the northeast on my map. Second, "foisted on the states by their legislature" is an extremely strange way to think about the American political system. From that perspective, 99% of what government does is "foisted" on us by our democratically elected representatives.

"How about the human rights of the majority, for crying out loud?"

I did not realize that bossing other people around was a human right. There may well be a moral case against same-sex marriage, and I'm willing to be persuaded. But I know that this isn't it.

"It's not a religious issue...it is simply a basic moral issue. Homosexual marriage is repulsive"

In total seriousness: I struggle to make sense of this sentence in a way that is flattering to you. You make absolutely no argument about what the (secular) moral issue is here. You just assert that it is "repulsive." How would you expect someone reading this to interpret it?

Benjamin of Tudela said...

Read Jonathan Kay on this subject -
http://fullcomment.nationalpost.com/2012/05/16/jonathan-kay-on-gay-marriage-there-is-only-one-happiness-in-life/

Unknown said...

"Recent polls have consistently found that we're about at the 50-50 mark nationally. If you have evidence to the contrary, I'd be interested in reading about it."

My evidence is the only REAL evidence, unlike polls which are easily manipulated by the individuals polled. The vast majority of states, and that includes states like NC and Oregon, have voted against it. That pretty much undercuts the claim (the hope to create a self fulfilling prophecy, really) that support for homsexuals marrying is "growing."

"First, it's 6 states plus DC, and Iowa is not in the northeast on my map."

DC is not a state. And from what I read, Iowa never actually permitted it, some left wing activist judge there tried to say it was mandatory, and he got shot down. But I'm willing to say I might be wrong here. I dont follow this issue closely. So yes, perhaps its not just five states, possibly its just six.

"I struggle to make sense of this sentence in a way that is flattering to you. You make absolutely no argument about what the (secular) moral issue is here. You just assert that it is "repulsive." How would you expect someone reading this to interpret it?"

I couldnt care less if you struggle to intrepret it in a flatering way. And it doesnt call for interpretation. The very idea of two men "marrying" each other is revolting. That's not a sentence that needs interpretation. You are entitled to your opinion otherwise, just like the members of NAMBLA are entitled to theirs. Please do not attempt to stifle debate by self-determining for yourself the bounds of polite conversation.

Josh said...

Ha. OK. This is the point where I tap out and feel silly for engaging in the first place.

Benjamin: thank you for sharing that article, it was a good one.

I continue to search for a good secular, moral case against same-sex marriage and am beginning to think no such thing exists. If anyone reading this thread has any suggestions, they would be much appreciated (seriously).

Josh said...

Also, that Jonathan Kay column reminds me of arguments that Andrew Sullivan has made, e.g. here: http://www.theatlantic.com/daily-dish/archive/2010/08/the-unique-quality-of-lifelong-heterosexual-monogamy/183770/