Obama’s Advocacy of Gay Marriage: An Alternative Orthodox Response – by Rabbi Zev Farber

In an interview with ABC News last week, President Barack Obama said, “I think same-sex couples should be able to get married.” Since then all hell has broken loose. In the Orthodox Jewish community alone, three different organizations reacted publicly to the president’s announcement. Agudath Israel announced that they are “staunch in their opposition to redefining marriage,” although they admitted that the president, like everyone else, has a right to their opinion.[1] The Orthodox Union expressed disappointment in Obama’s statement, stating that they “oppose any effort to change the definition of marriage to include same sex unions.”

The most strident condemnation came from the National Council of Young Israel which expressed “deep disappointment” in the president’s statement, writing that they are “diametrically opposed to same gender marriage, which is a concept that is antithetical to the religious principles that we live by.” The NCYI ended their statement with the following: “As firm believers that marriage is a sacred bond between a man and a woman, we simply cannot accept a newfound social position that alters the value, definition, and sanctity of marriage as set forth in the Torah, which has guided us for thousands of years.”

Here is where I see the problem. Certainly the Torah has guided observant Jews for thousands of years. Nevertheless, the United States of America and its president are not bound to legislate in accordance with the Torah. Religious Jews are just one group in the plethora of religious communities in the United States and we can hardly condemn the president for not taking Torah law into account.

Taking a step back, it seems to me that—with all due respect to the various institutions quoted above—all of these statements are missing the boat. The most incisive analysis published on this issue thus far, from the Orthodox community at least, has been Rabbi Shmuley Boteach’s piece in the Huffington Post, “The greatest threat to the future of the American family is not gay marriage but rather divorce.” I would add that this threat extends to “accidental families” as well, wherein the couple does not remain together, irrespective of whether they were ever married.

In contrast, same-sex marriages are of interest to a certain subset of the population, and do not affect the lives of heterosexuals who wish to marry their opposite-sex partners. The existence or legality of gay marriage should not be an issue for the Orthodox Jewish community, unless there is a fear that Orthodox rabbis would be forced to perform such weddings or that Orthodox synagogues would be required to treat such couples as “married.” However, if the NCYI is concerned about this, they should have raised this in their statement as the OU did:

“…we appreciate President Obama’s statement today acknowledging that in states where same sex relationships are legally recognized, such laws must carefully address and protect the religious liberties of dissenting individuals and institutions, and the President’s reported reference to the New York State law (on whose strong religious liberty provisions the OU worked) as a model for how such protections must be in place.”

This concern, at least, makes sense and falls under the purview of an Orthodox Jewish organization aiming to protect its own constituency. What is not under the purview of Orthodox Jewish institutions, or the institutions of any other religious group, is to demand that America enact legislation that is specifically in line with its own religious tenets. To paraphrase a quip made by a colleague, I assume the NCYI would not be shocked to learn that in addition to supporting gay marriage, President Obama also does not keep Kosher and drives on Shabbat.

Although I have no problem with all fifty states permitting gay marriage, Boteach makes an alternative suggestion that is worth considering. He argues that perhaps the government should leave the marriage business altogether and only do civil unions. That way any couple, homosexual or heterosexual, will receive the same civil status and legal recognition, and each can “consecrate” their union in a manner meaningful and acceptable to their own faith communities.

In truth, the implied claim that the legal status of a married couple in America carries some “religious weight” in the Orthodox community is disingenuous. The only reason couples married in America are considered married according to halakha is because they perform a religious Jewish ceremony. If they were married in a civil ceremony instead, then according to the vast majority of halakhic authorities (Rav Henkin being the notable exception) they would not be considered married according to halakha.

Furthermore, if a Jewishly married couple were to get only a civil divorce, there is no halakhic authority that I am aware of that would consider them divorced according to Jewish law. None. So in what way does the Orthodox community actually take the legal status conferred on a couple as binding in a religious sense? This is why it is hard for me to understand the extreme, almost visceral, reaction of much of the Orthodox leadership.

Two further points need to be made. First, as I wrote in a previous post, even in the Orthodox world-view, where homosexual congress is considered forbidden, there needs to be sensitivity to the fact that homosexuals—whether for genetic, hormonal, or psychological reasons—experience the same need for love and intimate companionship that heterosexuals experience. Homosexual men and women looking to marry are simply trying to establish a life of love and intimacy in a familial context in the same way that heterosexual couples that marry and have children do. Although the OU’s statement does mention that they condemn discrimination, overall this voice of concern and empathy for homosexuals is sadly lacking in the current discourse. To quote Boteach again: “Who does it bother to have gay couples granted the decency to visit each other in hospital during serious illness, make end-of-life decisions and receive tax benefits as a couple?”

Second, considering the current erosion of the stable family unit and its replacement either with rampant divorce or non-committed relationships, homosexual couples who want to form committed relationships are hardly the enemy. In fact, this type of relationship is closest in character to the choice made by married heterosexual couples in religious communities like our own. Contrary to the opinion of some fringe groups, people who feel they are attracted only to members of their own gender will continue to feel this way throughout their lives. Considering this fact, as a religious community deeply concerned about the strength of American society, whose goals are to solidify family values, shouldn’t the gay couples who wish to marry and bring up children be seen as our allies, not our adversaries?


[1] Everyone else except for Marc Stanley, apparently, whose statement the Agudah labels “outrageous, offensive, and wrong.”

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28 Responses to Obama’s Advocacy of Gay Marriage: An Alternative Orthodox Response – by Rabbi Zev Farber

  1. Ira Shepard says:

    Nobody will force Orthodox rabbis to perform same sex marriages. Instead, marriages performed by persons who are unwilling to perform same sex marriages will be denied validity under state and federal law.
    Couples married in Texas by Orthodox rabbis would be treated as married under the doctrine of “common law marriage,” which merely requires: (1) an agreement by the couple to be married, (2) cohabitation, and (3) holding themselves out to others as being married. Outside of Texas (and a few other states), there will be the requirement of going through a civil marriage for a couple married by an Orthodox rabbi in order to have that marriage recognized by state and federal law.

  2. Tourila says:

    Well written, as usual. I’m curious about one sentence you wrote: “in the Orthodox world-view, where homosexual congress is considered forbidden…” It seems to me that in your quest to be as sensitive as possible to homosexuals, you’re stepping away from clearly enunciating the Orthodox view on gay marriage (like all those Orthodox groups did), that it is forbidden. The closest you came is in the above sentence, where homosexual congress (marriage? sex?) is “considered” forbidden. This hedge-word, “considered”, in my opinion, makes the sentence come across as sounding a bit weak, almost dismissible. In fact, I can’t help but suspect the following: that if some Orthodox rabbi tried to marry two men to each other, you would express more sympathy to the men and the rabbi than you would in criticizing the rabbi for breaking halacha. You might even defend this act by saying, “shouldn’t the gay couples who wish to marry and bring up children be seen as our allies?”.

    • Anonymous says:

      agreed with Tourila – It is nice that he is trying to be empathetic to the plea of the homosexuals but he is saying straight up that he is therefore okay with going against the way of the Torah. Sorry but that is not ok, especially if you consider yourself an Orthodox Rabbi. Something aint right here

  3. Sara says:

    What about Binei Noach? They are obligated to not engage in illicit sexual acts. And the state is obligated to set up a legal system to enforce it. Therefore, it *would* be in the Orthodox Jewish groups’ interest to prevent same-sex marriage.

  4. Although I really enjoyed your line of “I assume the NCYI would not be shocked to learn that in addition to supporting gay marriage, President Obama also does not keep Kosher and drives on Shabbat”, there is no sense in the Talmud that requires all people to be shomrei kashrut or shomrei shabbat. However, there is the notion of the seven Noahide commandments, which could have Jews advocating for our country following this foundational moral code….

  5. Melville says:

    > “same-sex marriages are of interest to a certain subset of the population, and do not affect the lives of heterosexuals who wish to marry their opposite-sex partners.”
    Would you care to take a minute to come up with a way or two in which the existence of those marriages _would_ affect us?

  6. [...] Obama’s Advocacy of Gay Marriage: An Alternative Orthodox Response – by Rabbi Zev Farber « More…. This entry was posted in GLBT, Human Rights, Jewish, Politics and tagged Agudath Israel, Barack Obama, Gay, Gay Marriage, GLBT, Lesbian, Marriage Equality, Morethedoxy, National Council of Young Israel, Orthodox Judaism, Orthodox Union, Rabbi Shmuley Boteach, Rabbi Zev Farber, USA. Bookmark the permalink. ← The Marriage Plot | Forward.com [...]

  7. Anonymous says:

    The Rav has done a splendid exegesis of the maxim “Live and let live.”

  8. Rabbi,
    I would be curious to hear your reaction if marriage between brother and sister (Gd forbid) became acceptable or if the president felt that if people want to have an intimate relationship with their family pet then that should be their own choice. How would you feel if the president felt that wife-swapping is a perfectly acceptable way of “spicing up” a relationship? Do you think that God wants homosexual marriage to become the norm in the USA?
    I’d be interested in hearing the mkoros you cite in formulating an answer.

    At a certain synagogue in Riverdale, as part of an attempt to reach out and express unity with the gentiles a church choir was invited to sing in the synagogue. Do you feel that it is also an acceptable form of “reaching out” to the gentiles by teaching them the sheva mitzvot bnei noach? Are you aware that homosexual intercourse is forbidden to gentiles under Torah law and that rejection of this principle could deny them their share of eternity?

    You state that homosexuals who want to marry should be seen as our allies, not our adversaries. What about Christians who also believe (based on our Torah) that homosexuality is destructive and based on our Torah oppose homosexual marriage; are they “more” or “less” of an ally than homosexuals who want to get married?

    Looking forward to reading your reply.
    Sincerely, Moshe Averick

    • Tzippi says:

      I couldn’t agree with you more Moshe. To say that Orthodox community should not be bothered or that isn’t affected by the legality or presence of gay marriage in the country they are living in is ignorant also. How can one wanting to keep Torah and stay focused on Hashem’s Torah not be affected by seeing two men kissing each other out in public and knowing that that is accepted in their society! Just as one was affected when seeing the disgrace that was to come upon the sotah… the immorality affects everyone who witnesses it. The immorality and corruption of Sodom and G’morrah affected Lot.
      Great comment Moshe. Zvi’s statement below about the incongruity of comparing this to kashrut and Shabbat observance is another good point.

  9. zvi says:

    An honest assessment of the issue and a fair critique of the NCYI’s hurried response to the President’s statement. But your colleague’s quip regarding Obama eating kosher and keeping Shabbat is halachic sophistry (and, by the way, Boteach made this same point in an article–he has a brother who is gay–that homosexuality is one of the many prohibitions like kashrut etc…). This argument is halachically unjustifiable and logically fallacious as an analogue for two reasons: (1) Homosexual relations carry a punishment severely greater than forbidden consumption of foodstuffs (2) We believe illicit relations apply to non-Jews (as part of the Seven Noachide Laws), whereas Shabbat and Kashrut are decidedly not part of the legal corpus designed for the non-Jewish world.
    But I do find religious groups assuming the placement of civil law should blend with religious interpretation a little suspect. Good article.

    Yours,
    Zvi Schindel

  10. wfb says:

    Fallacies abound in regards to this topic, many of them reproduced here. The OU, Agudah and NCYI express their opposition to gay marriage, engaging in their right of free expression, and liberals whine about the violation of the first amendment. In reality, religious organizations and religious leaders have always voiced their opinions on moral issues (see: Martin Luther King, Jr.) and yet our democracy has continued to function. The second fallacy is eliding the difference between the 613 commandments and the Noahide laws, and pretending that opponents of gay marriage should want to impose kashrut and shabbat on the country. The third mistake is the assumption that allowing gay marriage is simply the neutral, non-judgmental position. As the harvard philosopher Michael Sandel has pointed out, the state chooses to sanction some unions as marriages and not others (polygamous, incestuous, etc.), thus the question is whether gay marriage deserves state approval. In deciding this question, people of religion will and should turn to their religious commitments to determine what is best for society. They should not say, “we are Jews, let society go to hell.” Isn’t that what tikkun olam is about?
    I assume this comment will not be posted.

  11. Please explain the following:
    1) The Torah describes homosexual intercourse as an abomination. Not wrong, not undesirable, not “we just don’t do that” but as an abomination which would seem to imply that it’s quite morally wrong. If a person came up to you and stated that he loved stealing and committing all manners of financial crimes, would you be understanding and accepting of his position?
    2) If marriage is no longer solely defined as “one man and one woman” what is so sacred about “two” in “any two persons”? Why not three or ten? Are you in favour of polygamy?
    3) If marriage is about “any two persons” how do you justify not allowing a brother and sister to wed? Or an uncle and niece?

  12. Paul says:

    Just as there are limits to free speech as in you can’t yell “fire” in a crowded theatre, so too there are limits to who can get married as marriage is necessarily, in my opinion, between a man and a woman.

    “Those who do not learn from history are doomed to repeat it”. Civilizations where homosexuality is considered within the normal range of activities get destroyed from within and then finished off from the outside.

    The Torah calls homosexuality an abomination, so it makes sense to me that when homosexuality is sanctioned or considered within the norm for a society, that it causes a spiritual defilement within that society and ultimately greatly contributes to the downfall of that society. I cannot prove the mechanics of how this works, but I believe it does..

    As virtually all of us do, I have homosexual relatives. I love them and respect them and they are as every bit created in the image of God as I am. However, I won’t advocate for their practice of homosexuality. Sure, what they do in the privacy of their homes is between them and God, and I don’t want or need to know. But If I support legislation which supports homosexuality then I am encouraging them to practice it and I am sanctioning it.

    Aside from therapy to change one’s sexual preference which may or may not work, the only solution for a homosexual that wants to follow Jewish law is to abstain from sexual relations. I admit that this does seem like a huge test to ask someone to overcome this. However, we all have our own nisoyonos, and how can we say that one person has it more difficult than others.

    I believe that God gives us all tests which are equally difficult, one man to the next, relative to the level that an individual is on at that time.

    Trust me when i say I have my share of nisoyonos, and I know others that appear to live their lives with boundless mazal. Still, I would not trade my lot for theirs. I know they have their tests, obstacles, challenges and what have you, and my tests are for me and their tests are for them. I don’t know what their tests are, but I do know I can live with mine and I have no earthly idea if I could live with theirs and in fact, I assume I couldn’t.

    I am a middle-aged, divorced Kohen. Strike that. I’m a middle-aged, divorced, short Kohen. Actually, I’m a middle-aged, divorced, short, unwealthy Kohen. Moreover, I’m a middle-aged, divorced, short, unwealthy Kohen who lives in a small to moderate sized Jewish community with not a lot of women eligible to me. This is my unique situation and it is my job to overcome these obstacles as it is everyone’s job to overcome their obstacles. Divorced women, converted women, women that are products of halachically problematic relationships (challala) are all forbidden to me. So I also can’t have a halachically kosher sexual relationship at this time just as a homosexual can’t have one. Sure, I could find my soulmate and my problem is solved and the homosexuals can’t be solved, but is my situation equal to yours? It doesn’t have to be and it isn’t meant to be. It isn’t fair and it isn’t unfair. IT IS WHAT IT IS!
    Our job is to deal with what it is as best we can.

    Respectfully,
    Paul Stein, St. Louis

  13. Melville says:

    Though I thought it was a good essay, I just thought of a second thing that I felt your article missed. You didn’t mention anything about slippery slopes. I know full well that one can’t just toss in the “slippery slope” argument whenever he feels like it. Sometimes it’s no good. But then, sometimes it is good. But your article didn’t even address it.

  14. Here is my take on the whole push for acceptance of homosexual marriage, etc.

    An article entitled, “Married Men Can Finally Come Out of the Closet”

    http://www.algemeiner.com/2012/05/25/married-men-can-finally-come-out-of-the-closet/

    Sincerely, Moshe Averick

  15. Anon says:

    President Obama also endorses legal intermarriage between Jews and non-Jews! Which has been legal for most or all of U.S. history – and is much, much greater threat to Jewish marriage, and is also banned under Jewish law.
    Why has the OU and NCYI not come out and condemned this position, or at least lobbied in NY state and elsewhere to ban it?

    • Paul says:

      To my knowledge, intermarriage is not labeled by God as an abomination. It is a terrible thing for the Jewish people, but it is not an abomination. Therein lies the most significant difference IMHO.

    • President Obama has not explicitly endorsed intermarriage. If he were to come out and say “I think the idea that Jews who only want to marry other Jews is racist. They should all marry non-Jews so we can be one happy nation” then I think the OU and NCYI would come out and condemn it.

  16. Mr. Cohen says:

    Rabbi Zev Farber seems to be not aware of [or not care about] the fact that all Gentiles are bound by the Seven Noachide Commandments [Sheva Mitzvot Bnei Noach] whicj includes the prohibition against homosexuality.

  17. Steven says:

    A couple of observations:

    1. The states are only in the civil union business although they may call them marriage in the secular sense. The state is not in the religious union business which some may also call marriage. At least in Illinois, it is against the law for a rabbi to marry someone without a civil marriage license even if the couple has the most ornate ketuba ever created. When a rabbi marries a couple in Illinois (and most, if not all states) he is performing 2 unions: one civil and one religious. This comes into sharper focus with divorce. One cannot dissolve the civil union in a bet din and a civil court cannot dissolve the religious union.

    2. States have always dictated who can get married regardless of religious tenets. It has been common in many Jewish communities for first cousins to marry. In Illinois, first cousins may marry only if they are both over the age of 50 and infertile. No rabbi in Illinois will marry a couple in violation of that law. Illinois, however, will recognize the marriage of first cousins married in states where it is legal.

    3. Conversely, Halacha prohibits a man from marrying his father’s brother’s wife (Lev. 18:14) but Illinois allows that marriage.

    4. State laws prohibit marriages between persons below a certain age even if religious law allows it.

    Therefore, a state may decide who may get a civil marriage license regardless of what various religions may allow or prohibit.

    5. As for the Noachide laws, that is a circular argument. For those who follow Torah, they understand that those laws apply to non-Jews but it would come as a great surprise to a Taoist that he is bound by Noah’s descendants. And what about non-believers? How would Jews react if a Hindu said that non-Hindus have to follow a certain set of rules?

  18. Alavarius Stern says:

    Not intending to be anti-semantic, but did President Obama ADVOCATE for gay marriage or ACKNOWLEDGE AND ACCEPT its being and SUPPORT people’s choices. As a former English teacher, I would posit that advocate equals encourage; I did not read or hear encourage in the President’s statement.

  19. Neil says:

    Rabbi Farber ,
    you state, ‘Contrary to the opinion of some fringe groups, people who feel they are attracted only to members of their own gender will continue to feel this way throughout their lives’

    This is a hotly debated issue and for you to make a blanket statement like this is grossly oversimplifying the issue. I think most people would agree that there are some individuals that can change from a homosexual to heterosexual orientation, and others that cannot. Distorting the insitution of marriage and underimining the family unit we do great harm to the moral fabric of our society.

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