Bruce wrote:
Under Jewish law, a valid marriage requires a ketubah, kiddushin, the sheva brachot, etc.
These are the halachic conditions for a valid Jewish marriage. Is there any Jewish law that determines which marriages among gentiles are valid?
(In most cases, this might not be relevant. But if, say, two married gentiles convert to Orthodox Judaism, would an Orthodox rabbi insist that they be remarried in a halachic manner?)
Agree on everything. The only extra thing to add would be this -- halacha differentiates between chok (a decree which cannot be arrived by logic alone that is followed only because it's in the Torah) and a mishpat (a law that can be arrived at by logic/common sense).
So although an Orthodox Jew according to his system should try influence the law so it at least takes the flavour of the mishpat halacha (since it will lead to a more just society) -- there is absolutely no reason to try influence for a chok.
The prohibition of male to male anal sex clearly seems a chok so it should not be argued for in civil law.
(Of course people in the halachic tradition have argued that it's a mishpat.)
And even cases that are considered mishpat almost universally by observant Jews, eg. idolatry, are legal. I guess it also only makes sense for Jews to vote against things that are both mishpat and laws bein adam vechavero (laws that pertain to human relationships, as opposed to a person's relationship with God).
Bruce,
I've been wanting to write a post with a similar approach for a few days now and I still might. However, you've laid the case out exquisitely and expressed some of my sentiments on the matter with greater clarity than I could have.
Cheers!
Larry asks an interesting question, and one that must come up regularly. I don't know the answer. Anyone else?
They have to remarry after conversion. I know a couple whose prior conversion is not considered acceptable at the shul they attend. The Rabbi will not reconvert unless they both agree to reconvert, remarry and live halachically.
I am not sure I agree. Halacha is not the only reason that an observant Jew would support a cultural position in his/her society.
Just by way of example, it would be silly to argue that "one should not support laws opposing theft just because it is against halacha".
The fact is that an observant Jew takes more than halacha into account when considering what is productive in the society around him. There are enough Jewish texts which clearly oppose Homosexual behavior in non-Jewish societies and which decry the effect of such behavior. Thus, halacha is irrelevant in this case as it is in most.
I actually think that your premise is a fallacy in that it is rare that observant Jews vote by way of Halacha. If they vote based on Judaism, they generally vote by way of the overall value system promoted by the system which clearly rejects homosexual behavior repeatedly and unequivocally, both in Jewish life and the world in general.
Se Chullin 92a-b as well as Midrash Rabbah Leviticus 23:9 and rashi ibid.
For those of us at the more liberal end of Judaism, this is not much of an issue, since we either are not concerned about halacha or are willing to modify halacha to permit such relationships, and presumably such marriages.
...or we think that halacha (however it got there) already permits such relationships, so that it need not be modified anew each time.
The government's issuing driver's licenses may not indicate approval of the behavior of a particular driver, but it most definitely does indicate approval of the idea of people of that age driving. Issuing corporate charters may not indicate approval of the particular product, but certainly indicates approval of people doing business. In similar fashion, government issuance of marriage licenses to same-sex couples absolutely indicates government (and societal) endorsement of same-sex marriage, especially when there is a specific change from a case where such relationships were categorically not recognized and approved.
This is an old question, but the Chabad community in recent years has publicized a lot about their views of the law as applied to gentiles. In their view, the fifth Noahide law prohibiting adultery also prohibits sexual relations between man and man. (Somehow, lesbianism escapes comment.) See
http://www.chabadjapan.org/
seven...hidelawse.htm#5 -- the first link I came up with for this. Also, I understand Jews are not supposed to lead gentiles into immorality.
P.S. -- This British group has a different numbering system, but seems to say the same thing: http://www.noachide.org.uk/html/
...ahide_laws.html
I think this downplays the societal-approval aspect too much. As the post points out, most of the rights between married couples can be obtained between unmarried persons through alternative means. This means that the real issue for same-sex couples is societal approval of their choice. Of course, it is hard to argue that permitting same-sex marriage would not reflect society's approval of such unions when, as I explained above, that is the true purpose behind the campaign for same-sex marriage.
Bruce isn't careful enough in saying what halachah demands. In fact, halachah recognizes that non-Jews can get married and divorced without any of the rituals Bruce names-- all they need is consent and living together, and then can render it asunder by either party's unilateral decision to leave. Ditto for lashon hara, w hich is only prohibited for Jews about Jews (according to most opinions). So the question with same-sex marriage and other such issues is: what does Jewish law say for non-Jews on this issue? Only then can the conversation even get going on a firm footing
Here's another reason that observant Jews should not support the gay marriage ban: For thousands of years Jews have lived as a minority among the nations (Babylonians, Greeks, Romans, Christians, Moslems, etc.). Despite pleas to "live and let live" we have suffered greatly by having the majority's religious laws imposed upon us against our will in the context of a theocracy.
Now that we are living in a a country that lives by (supposed) Judeo-Christian values, we owe the same respect to others whose behaviours may go against our own religious laws.
Jews have the most to lose if religion once again influence legislation. I am only 37, but I still remember the Canadian "blue laws" that closed all stores on Sundays, making it very difficult for observant Jews to run errands on the weekend. It is not far fetched to imagine a state passing legislation banning ritual circumcision (i.e., not performed by a physician in the hospital) or ritual slaughter (as some European countries have done).(
P.S. You don't see observant Jews seeking legislation banning tattoos or clam chowder, and this is no different than wanting to ban gay marriage. IMHO, the only reason to support a ban on gay marriage is outright homophobia and prejudice, distinct from halachic considerations.
Gidon makes an interesting point. OK - take the seven Noachide laws.
One Noachide law prohibits blasphemy, which is currently protected by the Free Speech Clause. Would you support an American law (it would have to be a constitutional amendment) that outlawed blasphemy?
Another Noachide law prohibits adultery (technically, a married woman having sex with a man other than her husband). Suppose that a couple with more liberal sexual ethics agrees that each spouse can have sex with other people. Would you favor a law to criminalize or otherwise penalize such conduct?
Another Noachide law prohibits idol worshiping, which is protected by the Free Exercise Clause. Would you favor a law (again, it would have to be a constitutional amendment) that would criminalize or penalize such conduct?
My answer is no in all 3 cases. I think that we should not try to impose our views of morality on the rest of America through enacting laws, and instead do so by persuasion.
Bruce makes the key comparison: adultery. Unlike homosexual activity, which many people see as moral, almost everyone will claim to believe that adultery is immoral. And if we want to protect families, surely adultery and divorce are greater threats than someone else's gay marriage.
From this I think it's clear that if gay marriage had been legal for the past many centuries, suggesting that we should outlaw it -- while keeping adultery legal -- would be silly.
But this comparison raises two problems, which I see as the key to the debate (the public one, not the religious one).
1. Gay marriage has not been legal for the past few centuries; indeed, there doesn't seem to be any society in history, even those that accepted gay activities, that made gay partnership symbolically equal to heterosexual marriage. If this is done by the people -- or by the courts -- doesn't that sends a signal that government has the authority to re-mold society, even into forms never before seen? That might give one pause, even if the specific change in question can't be shown to be harmful.
2. What about adoption? That issue is often sidestepped, and indeed I believe that some -- not all -- of the "non-marriage unions" that have been legally instituted for gay partners give them adoption benefits. Orphans are wards of the court, and so the government has a certain authority over them that it doesn't have over other kids. In other words, there are hundreds of real kids whose futures will be changed by how you vote, and if we are honest, neither side really knows for sure what this might mean for them. To me, that issue is far more important than the marital status of two adults.
The question of what and how to impose is an interesting one, but somewhat of a red herring. If Bruce were convinced that a certain action was murder, I suspect he would support legislating against it even if others saw it as permitted. If adultery offended Bruce deeply, and he saw it as cutting away the underpinnings of society, he might have a harder time looking at others' adultery with equanimity. In some cases, the value of live and let live might even outweigh that, but not in all (for example, we outlaw racism despite there having been people in America who believed in racism as a matter of principle-- we found it distasteful enough that it overrode our presumption in favor of live and let live). Jews tend not to see that in terms of Jewish law because we don't really believe that it is so fundamental to the world's proper running.
But I'm also not sure that Bruce is asking the right question-- I may not feel the need to legislate against certain things for the kinds of reasons Bruce raises, but can I support (as opposed to not fight) legislation that makes a positive value of those same things? To take Bruce's examples, I might not support a law outlawing blasphemy, but could I support a law whose central purpose was validating it?
Same on adultery-- there's a world of difference between seeking to legislate it out of existence, and having laws that make it an equally valid lifestyle choice as compared to marital fidelity (interestingly, today's Science Times has an article noting a sharp rise in adultery--does condoning a certain activity lead to its rise, with consequences to come?).
Same on Idol worship-- I might like the Free Exercise Clause enough not to want to change it, but it doesn't validate all forms of worship, it agrees to ignore it. I couldn't see supporting (as opposed to not fighting) laws whose central purpose was to declare all forms of religion valid.
Larry K's makes 2 interesting points, but I don't think either one prevails.
1. His first point is general Burkean conservativism. This would be an unprecedented change. But Burke did not argue that unprecedented change should never occur, only that it should be slow and careful. After all, Burke defended the unprecedented American revolution but criticized the unprecedented French revolution.
I agree with this argument as far as it goes. Such change should be taken carefully and thoughtfully. But the opponents of gay marriage have not offered any compelling social or political reason for opposing gay marriage. They have only offered religious reasons, or little-c conservative reasons (that border on opposing all change).
2. Larry's second point addresses adoption. First, this is really in the realm of adoption law, not marital law, and it is not cleat that a gay couple's status as domestic partners or spouses will make any difference in whether they can adopt.
Many adoptions today are open adoptions where the birth mother chooses the adoptive parents. In such cases, the state merely makes sure that the adoptive parents meet certain minimal requirements, but the choice lies primarily with the birth mother. It would be a pretty bold step for the state to argue that a gay couple cannot adopt a particular child even though they are otherwise qualified and both they and the birth mother want the adoption to go forward.
Many other adoptions are from foster care, where the children have been removed from their home because of abuse or serious neglect. The truth is that there are more children here who could use a permanent home than there are parents willing to adopt. Many such children languish in foster care until they are 18. It is hard to imagine that anyone would prefer that situation for a child in foster care to adoption by a loving gay couple.
Gidon makes several interesting points as well, but I don't think they prevail either.
1. Murder. There is an obvious physical external harm from murder (namely, the death of the victim). So can be justified on this ground, wholly apart from anyone's moral views on murder.
2. Adultery. If much of American society treated civil marriages as allowing sexual relations with others, I would not be happy but would not try to oppose it. Such "marriages" would simply be a partnership of two people for some limited purposes, but not a marriage in the classical Jewish or Christian sense.
In fact, we have essentially removed the penalty for adultery by instituting no-fault divorces.
3. Racism. We actually do not outlaw racism, but only racial discrimination in certain areas. This law does not fit a priori within the simple libertarian framework. It is our American historical experience with racial discrimination that caused us to outlaw it. Discrimination against blacks was so pervasive and widespread that blacks were systematically shut out of much of American economic, political, and social life. And that required extraordinary legal intervention. In contrast, we do not restrict discrimination where it is idiosyncratic and not pervasive (e.g., discrimination based on hair color, or left-handedness, or having a name in the last half of the alphabet). If an employer admitted that he discriminated against an employee on one of these grounds, the employee would have no claim.
So restrictions on racial discrimination are based on more than moral discomfort. They are based on real external harm to the victims.
4. Laws validating blasphemy, adultery, and idol worship. I think this is Gidon's strongest argument, but it still comes up short.
American law should not be in the position of validating any of these things or their opposites. So, for example, it would be impermissible for the government to pass a simple proclamation stating that "monotheism is good" or that "idol worship is good". Both are equally outside of the government's role.
The question is whether we can should give equal rights to people who engage in such behavior. We should and we do.
If the government made a public forum available (say, a public park) for parades, speeches, demonstrations, etc., it could not exclude a group that blasphemed if the exclusion was based on the content of the message. Merely because the government make the public forum available does not mean that the government in any way endorses the message.
We treat adultery as an act without consequence in no-fault divorce law. A spouse who commits adultery will give or receive the same property rights, spousal support, and child custody arrangements as he or she would if there were no adultery.
In fact, the cases is stronger here because in the case of adultery, the other spouse is betrayed, much like any party to a breached contract is betrayed
(continued)
In fact, the cases is stronger here because in the case of adultery, the other spouse is betrayed, much like any party to a breached contract is betrayed. But American law treats marriage less as a contract and more of a fiduciary relationship with rights, duties, and consequences imposed by law. But the rule against litigating fault in divorces is largely a prudential rule --- divorce cases got really ugly where each side got to present evidence on how bad the other spouse was.
And an idol-worshiping religious group would be entitled to the same civil benefits as a religious group that did not. Both would be eligible for tax exempt status, could participate in faith-based programs, would have the same free exercise rights under the federal constitution, etc.
In short, in all three cases, a group or person is violating one of the Noachide laws, there is no external harm other than moral disapproval, and in all three cases American law treats them identically as if they did not.
Again, I think same-sex marriage falls in the same category.
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