Can Conservative Religion Survive Gay Marriage?

 

I. Orthodox Judaism and Gay Marriage

A leading Catholic writer, my friend and former colleague Joseph (Jody) Bottum, shocked the conservative world last week with the publication of an argument for Catholic acceptance of gay marriage. Jody’s essay in the liberal Catholic magazine Commonweal is wrong on many counts but sounds an alarm we ignore at our own peril.

All the major branches of American Orthodox Judaism oppose the legalization of gay marriage. In a joint statement issued in 2011, four Orthodox organizations—Agudath Israel of America, National Council of Young Israel, Rabbinical Council of America, and the Orthodox Union—averred, “We oppose the redefinition of the bedrock relationship of the human family… Society’s mores may shift and crumble but eternal verities exist. One is marriage. Its sanctity must be recognized and its integrity preserved.” After the Supreme Court struck down parts of the 1996 Defense of Marriage Act in June, Agudath Israel and the Orthodox Union expressed unequivocal opposition. The OU wrote, “We believe that our Divine system of law not only dictates our beliefs and behaviors, but also represents a system of universal morality, and therefore can stake a claim in the national discourse.”

A few Orthodox rabbis counter that Orthodoxy should stay out of the debate on pragmatic grounds: Jews defend shechitah and b’rit milah against legal attempts to prohibit them on the grounds of religious freedom in a democratic society, and should refrain from any action that might appear to restrict the freedom of others. For Rabbi Josh Yuter, the issue is not the prohibition of homosexuality, not to mention homosexual marriage, “but Judaism’s expectations of non-Jews.” The trouble is that “there does not seem to be a moral objection to same-sex marriage which is not somehow based in a religious tradition… With institutions like kosher slaughtering and circumcision being challenged in court, we should be careful not to impose our own religious beliefs on others.”

The Orthodox majority holds that some Torah values embody a “universal morality” which Jews are obligated to defend in the public square. Yuter’s dissent from the majority Orthodox view is legitimate, if (in my view) wrong on two counts. First, as the Catholic philosopher Robert P. George and two of his students argue in a recent book, there are strictly rational grounds to oppose gay marriage. Second, the dissent underestimates the risk that legal enforcement of the legitimacy of gay marriage may intrude on the autonomy of Jewish institutions.

To argue that Jews should seek to preserve their own practices and ignore government sanction of moral decay around us is an unusual view in the Orthodox world, but not exactly a man-bites-dog story. For a Catholic to take this position, by contrast, is front-page news. When Joseph Bottum, former chief editor of the conservative Catholic monthly First Things, published a 10,000 word essay entitled “The Things We Share: A Catholic’s Case for Same-Sex Marriage” last week, the New York Times sent a reporter to interview him at his home in rural South Dakota. The trip required a full day of travel, with a change of aircraft and a two-hour drive from the Rapid City airport. I made the same trip in 2009, when I was a senior editor at First Things.

II. Catholicism’s Future

Jody Bottum’s essay, published last Friday, came as a surprise, but Jody has surprised me often in the past. The first occasion was a brilliant 1995 dissection of the religious verse of T.S. Eliot, usually presented as a hero of Christian letters. Eliot’s faith was instrumental rather than genuine, Jody argued, a striking dissent from the prevailing view. I followed his subsequent work closely; here was a devout Catholic writer unafraid to challenge conventional thinking, unique among his peers in that corner of English letters. Jody surprised me again when he reached out to the pseudonymous “Spengler” – my nom-de-plume when I wrote anonymously for Asia Times Online – to solicit a 2007 essay on Franz Rosenzweig’s devastating and usually-ignored critique of Islam. I refused payment for the piece (out of reluctance to reveal my name) and asked him instead to meet for dinner. We became instant friends; I had never met a Catholic intellectual with such sympathetic curiosity about the Jews. He hounded me for a year to write an essay making a theological case for the Catholic Church to support the State of Israel. When he became chief editor after the death of First Things’ founder Richard John Neuhaus, he surprised me again by asking me to join the masthead. During the subsequent two years I had the privilege to edit material by Prof. Michael Wyschogrod, R. Shalom Carmy, R. Meir Soloveichik and other Orthodox thinkers. When Jody left the magazine in 2011 to write books, I did the same thing, although I still contribute occasionally.

One often learns more about the underlying issues from Jody Bottum’s mistakes than from the dutiful plodding of many of his peers. His essay elicited a snarky dismissal from the website of his old magazine First Things. My former colleagues’ response is disappointing, for there are insights in Jody’s essay which are ignored at one’s peril. Much as I disagree with him, I have learned some things from his essay about the state of Catholicism.

There are lessons here of importance to Jews. Wherever Jewish religious freedom has come under attack in Europe—in attempts to ban circumcision in Germany, or ban shechitah in the Netherlands and Poland, or to change the definition of Jewish status in England—the Catholic Church has defended our right to practice our religion as we see fit. But there is a different self-interested reason for Jews to hope for the Catholic Church’s success. In the United States, the Catholic Church has become the canary in the coal mine; if militant secularism succeeds in restricting the religious freedom of the country’s largest religious denomination, we will be next. We find ourselves in the same foxhole with the Catholics on the issue of religious freedom, and cannot be indifferent to its predicament.

Jody’s Commonweal essay addresses the gay marriage issue from the vantage point of a far weightier problem, namely the prospects of the Catholic Church in an increasingly hostile, secular world. First Things was in many respects a product of the papacy of Pope John Paul II. It bore the hope that Wojtila’s Poland, after its Catholic-inspired stand against Communism at the peak of the Cold War, would become an exemplar for a liberal democracy inspired by religious devotion. As Father Neuhaus wrote in 1994, “It is possible that in the new world of Poland they will get the questions of religion and society – including church-state relations – more nearly right than we have succeeded in doing here.” The journal strove to revive the role of religion in the public square, and became the host for the coalition of Evangelicals and Catholics Together, the potent combination of Christian religious conservatives that did so much to sway politics during the 1990s and 2000s.

First Things rode the first wave of post-Cold War triumphalism to an uncertain juncture today. The Catholic Church is besieged by secularism and suffering from the self-inflicted injury of the sex abuse scandals. The resignation of Benedict XVI, one of its great theologians and doctrinal leaders, left its leadership uncertain. Not only Catholicism but the American Evangelical movement—a mainstay of American support for the State of Israel—is caught by the receding tide. In an Aug. 16 interview with The Wall Street Journal, Russell Moore, the leader of the Southern Baptist Convention’s political arm, announced, “The Bible Belt is collapsing.” Moore added, “We are no longer the moral majority. We are a prophetic minority.” The Evangelicals have not retained their young people. The Pew survey reported in 2007 that 32% of Americans aged 50 to 64 are white Evangelicals, against only 13% of Americans between the ages of 18 and 29. The public tide has turned against religion. Even if we are not affected today, it raises the risks to Torah-observant Judaism.

III. Arguments For and Against Gay Marriage

Gay marriage was political poison just a decade ago, but has triumphed today because of the sudden shrinkage in conservative Christian ranks. The gay marriage issue is a lightning-rod for the gathering storm of secularism, and for an obvious reason: sexual liberty has been the most effective adversary of biblical religion since Pinchas killed Zimri and his Midianite mistress. From the Temple prostitutes of Ishtar to the pederasty of classical Greece, paganism has offered sexual license while biblical religion restricted sex to marriage. Anyone who came of age during the 1960s remembers why traditional culture cratered in the handful of years before 1968: my generation was the first that was told that we could have all the sex we wanted without having to get married. The sexualized ambient culture has eaten the young of the Christian conservatives.

Jody Bottum writes:

One understanding of the sexual revolution—the best, I think—is as an enormous turn against the meaningfulness of sex. Oh, I know, it was extolled by the revolutionaries as allowing real experimentation and exploration of sensation, but the actual effect was to disconnect sex from what previous eras had thought the deep stuff of life: God, birth, death, heaven, hell, the moral structures of the universe, and all the rest.

The resulting claim of amorality for almost any sexual behavior except rape reflects perhaps the most fascinating social change of our time: the transfer of the moral center of human worry about the body away from sex and onto…well, onto food, I suppose. The only moral feeling still much attached to sex is the one that has to hunt far and wide for some prude, any prude, who will still condemn an aspect of sexual behavior—and thereby confirm our self-satisfied feeling of revolutionary morality. Of course, the transfer of moral anxiety away from sexual intercourse might not be so peculiar. Think how often ancient thinkers, from the pagan stoics to the church fathers, would reach to gluttony and fasting, instead of lust and chastity, when they needed examples for their discussions of virtue and vice.

There is no question about where we have come, and why: the question, rather, is how to respond from a position of weakness. Jody’s case for Catholic acquiescence to gay marriage bears the same pragmatic stamp as Rabbi Yuter’s. He fears that rancor against the Catholic Church for its stance on sexual morality will isolate it. His essay recounts long conversations with a gay friend in New York, a Republican conservative in fiscal and foreign policy matters, whose anger at the Catholic Church has risen to insatiability.

He wants the church hurt, its tax exemptions and even property-holding rights stripped away until it not only accepts laws allowing same-sex marriage, not only encourages same-sex marriage, but actually performs same-sex marriage. Even that might not be enough; the institutional weight of the history of Catholic bigotry, he thinks, is probably too much for repentance and reformation to overcome. Best, really, if the Catholic Church is systematically outlawed.
And that is one Catholic fear about same-sex marriage with force—the fear that the movement is essentially disingenuous. That gays don’t actually want much to marry, but Catholic resistance to the idea is just too useful a stick not to use. That modern Americans, heirs to the class-based self-satisfactions of their Protestant ancestors, look at same-sex marriage and think how wonderful a device it proves for a little Rome bashing.

Packed into this pragmatic argument are a number of sidebars that sound like rationalizing self-consolation. Is gay marriage really worse than heterosexual adultery? And if we accept divorce (which the Catholic Church considers tantamount to adultery), why can’t we accept gay marriage? Jody writes:

G. K. Chesterton once suggested that if there truly exists such a thing as divorce, then there exists no such thing as marriage. The root of the paradox is his observation of the metaphysics implicit in marriage ceremonies: “There are those who say they want divorce in the second place without ever asking themselves if they want marriage in the first place. So let us begin by asking what marriage is. It is a promise. More than that, it is a vow.” If we allow divorce, then we have already weakened the thick, mystical notion of marriage vows. Adultery is an everyday sin. Divorce is something more: a denial of a solemn oath made to God.

I’m not trying to argue here directly for an end to the culture’s embrace of legalized divorce, much as the sociological evidence about the harm to children now appears beyond dispute. Rather, the point is that the legal and social acceptance of divorce, building in Protestant America from the late nineteenth century on, culminated in the universal availability of no-fault divorce. And if heterosexual monogamy so lacks the old, enchanted metaphysical foundation that it can end in quick and painless divorce, then what principle allows a refusal of marriage to gays on the grounds of a metaphysical notion like the difference between men and women?

Protestantism did not invent divorce, however: the Torah, which restricted sexual relations to marriage for the first time in history, allowed for divorce. Divorce was practiced under biblical law for a millennium and a half before the Catholic Church thought to forbid it. Chesterton might have averred that there is no such thing as Jewish marriage because Jewish divorce exists, but not Jody Bottum.

Unconvincingly, Jody Bottum suggests that “same-sex marriage might prove a small advance in chastity in a culture that has lost much sense of chastity. Same-sex marriage might prove a small advance in love in a civilization that no longer seems to know what love is for. Same-sex marriage might prove a small advance in the coherence of family life in a society in which the family is dissolving.” In other words, gay couples are better off in state-sanctioned monogamous relationships than in bars and bathhouses. This argument tacitly presumes that the gay population is fixed by some external factor, for example genetic mutation and that marriage is a guarantee–the only guarantee–of monogamy.

The Jewish view from the Sages onwards is that the sexual license implicit in gay marriage is part of a pagan removal of moral barriers. Rabbinic tradition teaches that even societies in the ancient pagan world officially sanctioned homosexuality and other sexual transgressions. Rabbi Yuter quotes Sifra (Acharei Mot 9:8): “What did they [the Canaanites and Egyptians] do? A man would marry a man, a woman would marry a woman, a man would marry a woman and her daughter, and a woman would marry more than one man. For this it is written, ‘do not follow their practices’ (Lev. 18:3).” State sanction of gay marriage makes it easier to recruit people to neo-pagan practices by bringing sexual transgression into the mainstream.

IV. Cultural Dissenters

In 2010, I sat in on a running theological discussion sponsored by First Things, convened originally by the late Cardinal Avery Dulles. Marriage was the topic, and Catholics, Protestants and Jews in attendance anticipated the likely triumph of same-sex marriage. Some of the Protestants and Jews in attendance suggested that clergy might refuse to conduct civil marriages, and restrict their officiation to religious ceremonies. But the Catholics in the room declared that this was unacceptable. The Catholic Church understands itself to be the universal church of all of mankind, such that its values must prevail in society at large. If the law of the land differed drastically from Catholic teaching on such a fundamental proposition as marriage, it would “confuse the faithful,” and destroy the moral authority of the Church. This is where Catholics can learn survival skills from Orthodox Judaism.

Jews never claimed that the whole world should adopt their practices, but that is the central claim of Catholic faith. We have learned to maintain the status of concerned outside observers, a countercultural opposition, who reject mainstream values that are pagan and immoral. We build our morality from our tradition and select the elements of the mainstream culture that conform to our views. Concession on something as fundamental as sexual values empties the Bible of any contemporary meaning. It also forfeits the moral authority of traditional religion to assert its claim in other matters: if the Bible was wrong about something so fundamental to human existence, where can it claim to be right?

It is hard for the Church to think of itself as a countercultural opposition rather than as the universal institution of the West. It has done this in the past when the law of the land makes a mockery of the religious understanding of human life. The Catholic Church has lived under conditions of official persecution. China’s 10 million Catholics still do. The Polish Church under Communism gave not an inch of ground in matters of theology, and its leader Cardinal Wojtila became the scourge of liberal theologians. Poland, though, was a special case, in which the Church remained the repository of national identity against Russian occupiers. The effect of same-sex marriage on Catholic morale in the United States appears to be as deleterious as the participants in the 2010 Dulles forum anticipated.

If worst comes to worst, American Catholics may have to learn to be a minority—to become more like the Jews. That was the view advanced for many years by the Catholic philosopher Alisdair McIntyre, as well as Joseph Ratzinger, Pope Benedict XVI. Ratzinger stated in the 1995 interview-book The Salt of the Earth:

Perhaps the time has come to say farewell to the idea of traditionally Catholic cultures (the original German read Volkskirche, or people’s church–DG). Maybe we are facing a new and different kind of epoch in the Church’s history, where Christianity will again be characterized more by the mustard seed, where it will exist in small, seemingly insignificant groups that nonetheless live an intensive struggle against evil and bring the good into the world—that let God in (page 16).

Jody Bottum peremptorily rejects such a retreat: “We should not accept without a fight an essentially un-Catholic retreat from the public square to a lifeboat theology and the small communities of the saved that Alasdair MacIntyre predicted at the end of After Virtue (1981).” He mourns the loss of traditionally Catholic cultures, which he identifies with what Max Weber called “the great disenchantment of the world,” adding, “Marriage seemed one of the last places left where Weber’s ‘great enchanted garden’ of traditional societies could still be found.”

Bottum wants nothing less than the restoration of traditionally Catholic cultures, what he calls “the re-enchantment of the world,” the recreation of the receptivity of traditional society to Catholic faith, and he proposes to undertake this work of reconstruction where the prospects seem most promising. He argues:

The goal of the church today must primarily be the re-enchantment of reality.…

Is sex the place in which that project of re-enchantment ought to begin? I just can’t see it—not after the nearly complete triumph of the sexual revolution’s disenchantment, not after the way “free love” was essentially sold to us by the Edwardians as an escape from narrow Victorian Christianity, not after part of the culture’s most visible morality became the condemnation of those perceived as condemning something sexual….

The Church (like the Evangelical movement) is in trouble because the sexual revolution already has re-enchanted the world with a wicked sort of magic. Nothing is more uplifting in the setting of a faith community and nothing is so corrupting when set loose. It is Dante’s She-Wolf in the first Canto of the Divine Comedy, the predator whom Dante could not pass, che mai non empie la bramosa voglia, e dopo ’l pasto ha più fame che pria (who never satisfies her greedy will, and after eating is hungrier than before). There can be no conservative religion where sexual morality has unraveled.

Even worse: I do not believe that giving in on gay marriage will buy good will or a respite of any kind for the Catholic Church. Militant secularism will not rest until there is not left one stone upon another where the Church now stands. That is the conclusion to be drawn from the Obama administration’s effort to force Church institutions to pay for abortifacient drugs as well as birth control—a dangerous action during an election year that bespeaks an ingrained fanaticism. The hatred for the Church that Jody Bottum chronicles in his essay will not be assuaged by concessions.

As the Southern Baptist Convention’s Russell Moore told the Wall Street Journal, Christians are becoming a minority. And what they best can learn from the Jews is how to be a minority, as I argued in a comment on a recent symposium on the future of First Things. There are some concessions that traditional religion cannot make without sacrificing its authority, and the character of the human family is one of these. Orthodox Judaism survived decades of cultural isolation when conventional wisdom predicted that it shrink to the status of an irrelevant sect. Orthodoxy has thrived, on the contrary, precisely because it refused to abandon Torah values, while progressive Jewish denominations are shrinking. Christians should take encouragement from the Orthodox example and remain true to their principles. And Jews should continue to set an example of faithfulness to Torah values in the public square as well as the synagogue. The robust growth of Torah-observant Judaism has a radiating effect on the culture around us, most of all through our influence on traditionally-minded Christians. That is why the Orthodox organizations are right to take a public stand against official sanction of gay marriage, even if the stance is unpopular.

The “enchanted garden” of traditional society described by Max Weber won’t be coming back.1 What Jody Bottum has raised is the most difficult of questions for a Catholic: can the faith that created the West survive the death of traditional society? As I report in my book How Civilizations Die (and Why Islam is Dying, Too), formerly traditional Catholic countries like Poland, Spain, Quebec and Ireland went into a secular tailspin as they were forced into modernity. If Catholicism recedes in the United States, what Richard John Neuhaus called “the naked public square” will be far less hospitable to Judaism. The acceptance of gay marriage in American culture sounds a warning not only for Catholicism but for Orthodox Judaism as well. “A Catholic Case for Same-Sex Marriage” is a wake-up call to us all to strengthen our roles as the center of moral opposition.
———

  1. I find Jody Bottum’s reading of Weber confusing. Weber borrowed the concept of the “disenchantment of the world” from the poet and philosopher Friedrich Schiller, who blamed it not on the Enlightenment, but rather on monotheism. Schiller’s poem “The Gods of Greece” mourns the loss of the colorful panoply of pagan gods, complaining, “Einen zu bereichern unter allen/Musste diese Götterwelt vergehn” (to enrich One among all of them this world of gods had to perish). “The Gods of Greece” should be read next to Schiller’s essay “Moses’ Mission,” where he claimed that Moses was adept of the Egyptian priesthood who sold a rationalist philosophy to the ignorant Hebrews in the phony guise of revelation. “How,” Schiller asked, “could (Moses) entrust to an ignorant, enslaved rabble, which his nation is, even the slightest comprehension of a truth, which is the heritage of a few Egyptian wise men, and which presumes a high degree of enlightenment, to be comprehended?… The true God concerns himself for the Hebrew people no more than any other people.”

    Schiller was right to blame us for the world’s disenchantment. We were under orders to destroy Weber’s “great enchanted garden, to “destroy their altars, and break down their images, and cut down their groves, and burn their graven images with fire.”

 

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About the author

David P. Goldman has written the Spengler column at Asia Times Online for over a decade. He served as Senior Editor of First Things and his writing appears frequently in other media. He is the author of How Civilizations Die (And Why Islam Is Dying Too), and an Associate Fellow with the Middle East Forum.

 
The opinions and facts here are presented solely by the author. Torah Musings assumes no responsibility for them. Please address religious questions to your rabbi.
 

74 Responses

  1. Steve Brizel says:

    Kudos for posting a superb essay.

  2. Yossie Bloch says:

    It’s striking that you quote the Sifra without noting that in fact, some of those marriages are perfectly legal for non-Jews. It’s also worth noting that you conflate homosexuality with sex between men, which is what the Torah forbids: not being gay and not any relationship between women. The “Egyptian custom” is interpreted to ban lesbianism for Jews, but only for Jews. The only Talmudic source addressing gay marriage is the highly ambiguous Hullin 92b. I have written extensively on this topic for Times of Israel. I would also question the idea of the Torah being the first to limit sex to marriage, but I will leave that issue to the archaeologists and historians.

  3. Gil Student says:

    Yossie: I question your assertion that those marriages are “perfectly legal for non-Jews”. The Sifra clearly condemns the practice, implying that it is either forbidden or highly improper.

    Regarding lesbian relations, see R. Chaim Rapoport’s Judaism and Homosexuality: An Authentic Orthodox View p. 148 n. 25 where he argues that it is either forbidden (as per R. Yonasan Steif) or against the spirit of the law. David Goldman is arguing about more than just the technical parameters of the laws.

    • Yossie Bloch says:

      Well, you can take it up with the Rambam (Melakhim 9:5), who is the one who actually rules on the matter. Halakha is not based on the Sifra alone, especially such aggadic phrasing. I don’t own R. Rapoport’s book, but arguing that it is “against the spirit” is a tenuous position at best. Is non-Jews eating pork (or marrying their aunts) also “against the spirit of the law”?

      • Gil Student says:

        Yossi: I appreciate your spirited response but surely you realize that contemporary halakhah is based on more than a single rishon. Poskim look at a broader array of sources and researchers like us, who are not poskim, must look at the halakhic literature as a whole.

      • micha says:

        BTW, the Sifra (a/k/a Toras Kohanim) is a medrash halakhah, not aggadita.

        In any case, see Chullin 92a-b, where Ulla says that of the 30 Noachide mitzvos, the only ones they actually consistently keep are (1) not contracting marriage between men, (2) not engaging in cannibalism, and (3) respecting the Torah. (Ulla’s 30 is not necessarily a machloqes with the commonly accepted position that there are 7. E.g. R’ Shmuel b Chofni Gaon subdivides the 7 into 30. As the Rama miFano later does as well — Asarah Maamaros, maamar Chiqur Din 3:21.)

        Yossi, I looked at Melakhim 9:5, and he either prohibits gay marriage “ודבק באשתו ולא באשת חבירו באשתו ולא בזכור ” or isn’t discussing marriage one way or the other, only relations itself and citing this halakhah is simply off-topic. Personally I would assume the former; the Rambam’s prooftext implies that marriage and permitted relations go together, and thus prohibiting mishkav zakhar means there is no marriage between zekhorim either.
        But however you read Melakhim 9:5, it would be hard to assume the Rambam goes against the only clear statement by an amora without an equally clear statement in the Yad.

        • Yossie Bloch says:

          Yes, Sifra is Midrash Halakha, but I referred to “aggadic phrasing,” much like Hullin 92b, which I also mentioned. Your translation is one interpretation of a very obscure fragment.
          As for the Rambam, my intention was to show that he does not ban lesbian relations for Noahides, nor is it forbidden for a man to “marry a woman and her daughter.” That is the problem with using Lev. 18-20 (the only biblical source forbidding sex between men) as the basis for a position for wider society: Halakha allows most of the arayot to Noahides, sex between men being one of only 6 relationships universally forbidden. It seems that the Torah is saying: these are the things done in [Egypt and] Canaan which I collectively forbid for you. In that way, we may also understand the Sifra, picking out the items most shocking for the classical audience, not necessarily those which are universally forbidden. I would not use the Sifra as a source to challenge the prohibitions on bestiality and sex with one’s mother.

      • Joseph says:

        Yossie, The fact that Hashem chose to tell us in His Torah (at least according to Rambam) that such marriages are forbidden by saying “Not like the actions of Mitzrayim” should be enough of an indicator that although the gentile women are not forbidden from such relationships, Hashem does not approve of them. The first time a story that happened in Mitzrayim is featured in the Torah we are exposed to their licentiousness. They are viewed through the eyes of Hazal as flooded with licentiousness, shetufei zima. And the sifra in question lists both kinds of homosexual marriages, clearly not a stamp of approval. I believe that is what Rabbi Rapoport meant by “against the spirit of the law.” Your analogy to pork is fallacious. No where in the Torah does it say “Don’t eat pork like the _______’s (insert whatever nation may have historically had some kind of bad character trait) do.” to imply that Hashem disapproves of the nations eating it but He lets them. Another instance of something technically permissible for B’nei Noach (according to many Rishonim) but not recommended, and yet absolutely forbidden for us is shituf. It is possible for there to be something wrong, yet not forbidden. Unless, of course one views Halacha as a merely a moral guide. In that case, much effort will be required to explain away why some actions are moral for some and immoral for others. I tend to shy away from boiling down Torah to a bunch of moral teachings. Some actions are immoral no matter what. Some actions are immoral within the context of trying to build a constructive and functioning society. Perhaps if two women want to go off into the jungle, away from all civilization, there would be less room for disapproval, but in the context of a civilization, such an action could be (and I believe is) destructive to some very fundamental elements that a decent civilization needs in its undercurrents.

  4. David Goldman says:

    Rabbi Bloch,
    Thanks for the reminder about your writing in Times of Israel. The most relevant piece is entitled “Demise of DOMA (Defense of Marriage Act) is Good for the Jews.”
    http://blogs.timesofisrael.com/domas-demise-good-for-the-jews/
    Here your position is similar to Rabbi Yuter’s: all we want from the state is to leave us alone. As I wrote, I believe this is a legitimate Jewish position, if not the right one, in my view. Under some circumstances, e.g., the Alexandrine Empire, it surely was the right position. In a democratic society where the Jews have a prominent and influential position, I believe the Orthodox organizations are right to take a stand in the public square.

    • Yossie Bloch says:

      Dear Mr. Goldman,
      I’m flattered to know you’ve read my piece. I enjoyed yours as well, but I do wonder: considering how foggy our understanding is of Noahide law (the Rambam has the most extensive halakhic analysis I’m aware of, but it’s still pretty brief), how do we know which stand to take as Jews in a democratic society? Gay marriage is one example, but what about abortion, death penalty, gun control and other hotly-debated issues?

      • Gil Student says:

        I’m not sure that our knowledge of Noahide law is as foggy as you make it seem. Rishonim other than the Rambam discuss it in various places and a few Acharonim spent a great deal of time on it. I am aware of two English compendia of practical halakhah for Noahides!

        But that is all beside the point. David is arguing that focusing specifically on law is the wrong approach. We have to look at the Torah’s values.

        • Yossie Bloch says:

          How do you know the Torah’s values except through its laws?

          • Gil Student says:

            There is more to the Torah than forbidden and permissible. Those areas also teach us about values.

          • Gil Student says:

            There is Aggadah, in its broadest sense. There are acts not halakhically forbidden but also considered improper. There are rabbinic prohibitions and customs. And there are broad behavioral demands that are unspecified.

            You learn that Torah’s values by taking in the totality of its message. There is a spirit to the law beyond its letter.

          • Gil Student says:

            Do you mean: in what book can I find a list of the Torah’s values? The answer is: all of them.

            I am sure you know where to find Aggadah, machshavah and biblical commentary. Others can start in Talmud (Aggadah is conveniently contained in Ein Yaakov) and commentators such as Rashi, Tosafos and Maharsha, classic works of midrash, Rashi and Ramban on the Torah, Moreh Nevukhim, Kuzari, Derashos HaRan. The list is much longer but you wanted something specific.

            You can also find such concepts within halakhah, such as “ein ruach chakhamim nocha heimenu” (the spirit of the Sages does not approve of it).

            I am not sure who started the idea that anything not expressly forbidden is good, but it seems to me to fly in the face of Jewish tradition.

            • Ariel Dahan says:

              All these books do inform what we should and should not do as Jews, but how does any of it counter Rabbi Yuter’s argument that if we expect the government to stay out of our religion, we should let them stay within their secular values and promote our own values to our own?

          • micha says:

            The mitzvah of Qedoshim Tihyu as famously explained by the Sifra and the Ramban requires there be a notion of Torah’s values beyond its laws. How can one avoid being “disgusting with [what would otherwise be] the permission of the Torah” if the Torah didn’t also contain a definition of “disgusting”?

            Similarly, we are told multiple times in the Torah “ve’asisa hayashar vehatov — and you should do the honest and the good”, and the Ramban notes that this obligation has to exist because the Torah can’t possibly list every rule for every human interaction. Again, there is a presumed definition of “yashar” and “tov” that is beyond the laws that are spelled out.

            Not sure how we got here though, since the Noachide prohibition of two men marrying is explicitly spelled out in the gemara. (But as I recently posted, I don’t think we should oppose US legal theory by pushing for laws that serve the sole purpose of promoting morality. We should promote morality in other national fora.)

  5. Yossie Bloch says:

    Sorry, I am a bit confused: who takes the broader, more expansive view, posekim or “[we] who are not posekim”?

  6. Steve Brizel says:

    I don’t think that Orthodox Judaism as a movement and Orthodox Jews in particular can ever rely or expect a realization that “all we want from the state is to leave us alone”, in an age where a sexual revolution that was faciliated in no small part by the Supreme Court of the United States, and aided and abetted by the deterioriation of popular culture to the toleration of the lowest common denominator is an astute approach. The author pointed to a long list of societies where the destruction of a traditional religious society led to a “secular tailspin.” I would add Weimar Germany which was probably as decadent a society as any in the 1920s, and which played no small reaction in the growth of Nazism

  7. david_sher says:

    Mr. Goldman, I enjoyed the essay very much as I did your book, “How civilizations die…”. I agree with your views that there are certain things that can be sanctioned in a secular context but not within a religious one. My question is whether marriage is truly the venue for the argument. Marriage in the context of the United States, among others usually serves two masters; 1) A religious one, which at its best provides sanctified legitimacy to what has become a ‘commercial’ transaction. 2) The commercial transaction itself which links marriage to the state in the guise of tax policy. It is the tying together of these two threads which creates the difficulties here. It is hard to argue in a society that argues for pluralism and separation of church and state that certain types of ceremonies (religious and otherwise) involving the public weal deserve exclusive economic treatment while others do not. The unfairness in treatment is a real harm that can be measured and demonstrated. Without it, a requirement that a particular religion sanction non-traditional forms of marriage is an attack on pluralism.

    We will need a good answer to this question in order to maintain integrity in the public sphere. A whole host of problems are depending upon that answer now that the traditional view of the public towards religion (namely that
    conventional forms of piety are esteemed as pillars of society as suggested by Paul Johnson) have become confused.

  8. David Goldman says:

    Mr. Sher, thanks for the kind words. Why is marriage so special? If we believe with R. Sacks that the biblical concept of covenant is fundamental to democracy (as he argues well in The Home We Build Together), it is clear that in both Jewish and Christian tradition, marriage is understood in covenantal terms and vice versa. If we lose the biblical notion of marriage we turn the covenant into an empty construct, and the character of society changes for the worse.

    • Yossie Bloch says:

      My bible does not define marriage as between one man and one woman. Halakha, however, does consider marriage between Jews and non-Jews to be non-binding. Should we have supported redefining miscegenation laws as interfaith marriage?

    • david_sher says:

      I actually agree with your main point which is that conservative religion cannot survive gay marriage from the perspective of its own sanction.

      I think it can survive if Gay marriage is given secular legitimacy from the perspective of tax policy because this frees up the religion to adopt and maintain its own stance and standard without economically definable “damages” in a legal sense.

      If a person wants to be married in a civil ceremony they can opt out of a religion that will not marry them. This is another way of saying that the State can legitimately get out of the marriage business entirely and find another method for achieving its social goals.

      • Gil Student says:

        David Sher: It sounds to me like you are saying that we must live as a minority, maintaining our own values in the face of a secular government’s different values. I believe that is precisely David Goldman’s point.

        Perhaps the difference is whether one believes that one should attempt to prevent the government from allowing gay marriage. But that is now a largely moot point.

        • david_sher says:

          Gil: Yes, I believe that Orthodoxy should not attempt to prevent the government for allowing gay marriage even while only sanctifying traditional marriage. The distinction I make is that I would not be a voice of moral opposition, but rather a voice of counter cultural uniqueness, a positive voice advocating the beauty of a traditional nuclear family and not one that is against everything else. Perhaps its a distinction without a difference but I see it as very important in this day and age to stand for a principal but not against people who oppose the principal.

    • micha says:

      1- I think democracy is contractual, not covenental. A covenent is where two parties come together to make a new entity greater than themselves. A contract is where each side agrees to give up something to the other in order to get something in exchange.

      Marriage is a covenant.

      And Judaism, with its notion of a corporate Kelal Yisrael and a national soul, is a covenant.

      But the US constitution is a contract. A way to balance powers between the federal and state governments and the people — for the betterment of the citizens. There is nothing in the Constitution about a national goal everyone is joining together to make manifest.

      At times the American zeitgeist did have this character. But it’s not necessary for democracy. (And in fact historically got in the way of democratic ideals.)

      This is why Judaism has “all Jews are guarantors for one another”, whereas western values are more “live and let live” non-intervention. As long as everyone involved consents (and is an adult of sound mind and CAN consent).

      Which gets me to
      2- I think the question of whether we should try to push legislation based on Jewish values depends on the particular country’s values. The US is founded on the principle of maximizing autonomy and freedom. Therefore, the question of what’s moral shouldn’t have anything to do with its legal theory. We should push for laws that keep American citizens from “eating eachother alive” (c.f. Avos ) and minimize all other restrictions. Not because we think that’s the moral choice in each instance, but because that’s the American legal choice.

  9. Steve Brizel says:

    R Gil-please explain how we can live as a minority, maintain and advocate for our values without running afoul of advocates for either radical feminism or gay rights, who view Torah observance and views on feminism and the gay lifestyle either as misogynist or homophobic

  10. Yossie Bloch says:

    “There is more to the Torah than forbidden and permissible. Those areas also teach us about values.” Indeed, this is a cornerstone of Reform Judaism: even if the Torah permits or forbids an act, the values of the Torah (compassion, God’s image, equality before the law, social justice) may supersede it. Thus, the prohibition of sex between men may be set aside because it conflicts with the totality of the Torah’s values. I do not buy that argument, and I’m assuming you do not either.

    • Gil Student says:

      I find your argument puzzling. Instead, I direct you to R. Aharon Lichtenstein’s essay “Does Judaism Recognize an Ethic Independent of Halakhah?” in which he emphatically concludes that there is. I am not aware of anyone who disagrees.

      Your position is different than pan-halakhism because you are not expanding halakhah to encompass everything but reducing religion to the constraints of halakhah.

      Do you believe that Judaism supports the value of gratitude? I am not aware of any halakhic source requiring it.

      • Yossie Bloch says:

        And there are sources I can direct you to. Here are some:
        Avot de-R. Natan 46
        Avoda Zara 5a-b
        Sifrei Devarim 299
        Not to mention the Toda sacrifice, the Modim blessing or the Modeh Ani prayer.
        What value do you see as relevant to this discussion?

        • Gil Student says:

          Precisely my point! None of those sources require you to show gratitude. However, they convey the value of gratitude.

          The Avos De-R. Nassan 46 (presumably nusach B), Sifrei and Avodah Zarah references are clearly Aggadah. The sacrifice is limited to four circumstances and the prayer is certainly not halakhic in nature. But they all teach a value.

    • micha says:

      But aren’t we discussing the reverse? Not aggadita overriding halakhah, but aggadita telling you in which direction one goes lifnim mishuras hadin — beyond the letter of the law.

      You spoke of the fuzziness of our knowledge of Noachide halakhah. I understood Gil’s response (based on the post itself) to be that regardless of how blurriness about what halakhah allows, we have more clarity from aggadita about what we cherish. So that even if we can’t be sure if something is technically prohibited, we still could know it should be avoided.

      The case y’all are discussing as an example is gay marriage among Noachides, although contrary to this exchange I think the gemara says clearly it is prohibited. Even if you think it can’t be said for sure that the Torah does prohibit, it may still be possible to say for sure the Torah does discourage it.

      • Yossie Bloch says:

        The Torah discourages eating pigs. It calls them abominations (Deut. 14:3). There are aggadic passages explaining why (e.g. Midrash Ps. 80:6). Is it a Jewish value to fight the pork industry?

  11. Gil Student says:

    I apologize to the readers for getting back into the habit of quick comments. We should be writing thoughtful letters that are clear and make our points.

    Yossi Bloch asked above what the value is we are discussing. This is, indeed, the key question, which is why section III of this essay discusses it. We are discussing sexual values in general, the idea that it is a sacred bond and not merely a pleasure in which to indulge. This leads to many conclusions, among them that it should be reserved for sacred unions.

    I suspect Yossi is being flippant in his questions whether we should fight the pork industry and his attempt to distinguish between a concept and a value. With the gratitude example, he concedes that values exist, are important and can be deduced from non-halakhic passages as well as halakhic passages that are limited. I think it is clear that gratitude is not a solitary example but part of a larger group of Torah values.

    Regarding pigs, not every prohibition is a value judgment. There might, indeed, be times when we would be called upon to fight the pork industry. For example, if it was marketing to Jews. I suspect, however, that you will have a difficult time arguing that pig consumption is a matter of values.

    • Yossie Bloch says:

      1) I was not being flippant, Gil. I chose that example deliberately, because I believe it is analogous. All humans have dietary restrictions, namely a limb from a living animal. Jews have more: kosher species, kosher methods of slaughter, etc. Is that a moral/ values/ ethical judgement? Halakha does not indicate. Aggada indicates both–Midrash Ps. 80:6 introduces a moral value; Midrash Ps. 146:4 says otherwise. That is the problem with arguing from aggada; there is no pesak or verdict. We do not assume that there is a moral component or extra measure of piety to saying Shema at night horizontally, because Beit Shammai’s view is rejected.
      However, no one has ruled on the pork.
      2) Sexual prohibitions are quite similar to dietary prohibitions (Kareitot 19b), and so we are left with the same question. Yes, the value is sacred unions which go beyond sexual pleasure, but how are we to know what that includes? Homosexual couples will tell you that their unions are precisely that.
      3) Once we turn away from halakhic standards (the 6 enumerated by the Rambam), we end up guessing. The Sifra does not mention sister-marriage, which we know was a feature of Egyptian high society. Does this mean that is morally appropriate (even though in Ki Tavo, Moses does mention it, along with only stepmother, mother-in-law and animals)? If not, what of the Abraham-Sarah relationship? If we explain that away, what of Jacob and his wives, Judah and Tamar, Amram and Jochebed? We go down a rabbit hole.
      4) Even after the Giving of the Torah, most Rishonim concur that a Noahide may marry his daughter (the prohibition for Jews if famously not explicit in the verse, either). That becomes a sacred union, and anyone who violates it is to be put to death. Should that inform our advocacy in the public sphere?
      5) Ultimately, I think of the blue laws. Yes, the Sabbath is one of the most important concepts in Judaism: resting from one’s labors, recognizing God’s creation, relishing one’s freedom from human masters. Does that mean we should be in favor of keeping shops closed on Sunday? Based on Sanh. 58b, perhaps we should be opposed to Noahides observing the Sabbath!

      This is what leads me to the conclusion that, as Jews, we should be wary of religion in the public sphere.

      • Gil Student says:

        Yossie: Thank you for your serious response.

        1) Returning to the pig, as it happens I wrote about this subject not long ago: http://torahmusings.com/2013/04/is-pomegranate-moral/

        There are many rationales offered for the limited choice of animals. One midrash does not exhaust the literature, not even the midrashic literature and certainly not the post-talmudic literature. I see no consensus that eating pigs is inherently immoral and frankly do not believe it is. If you believe it is then maybe you should consider where that belief should take you.

        2) Your assumption that sexual prohibitions are similar to dietary restrictions is debatable. They key reason I can say this is that rabbinic literature does not (to my knowledge) suggest that gentiles are doing something wrong by eating non-kosher but it does suggest that they are doing something wrong by engaging in homosexual relations. That is the significance of the Sifra and the Gemara in Chullin regarding gay marriages.

        3) The Sifra condemns certain practices. You might infer that all other practices are acceptable but that seems to me a fairly weak inference because there could be other explanations for the omission. I’m not sure you mean by Avraham-Sarah and Yaakov-wives. Avraham implied that he was not married to Sarah by saying that she was his sister. Yaakov married two sisters. How are those cases relevant to this discussion?

        4) Here you are arguing that we must advocate for anything permissible by technical law to be permissible by secular law. This fails on two counts. First, it assumes that permissible/forbidden is equivalent to good/bad. I dispute that equality, as we have already discussed. Second, it assumes that public policy advocacy should be based entirely on this calculation. There are other concerns that have to inform our decisions, such as what the consequences would be of such a legal change and what confusion it might cause to the general public.

        5) Regarding the blue laws, you raise very interesting questions that deserve further thought. Maybe we should oppose the blue laws for precisely the reason you mentioned. Or maybe we should support them because the concept of the Sabbath has universal application. Senator Joseph Lieberman took the latter approach in his book, The Gift of Rest. While he is no rabbi, he makes some interesting points.

        • micha says:

          Gil, about the comparison to kosher, you write:
          “Your assumption that sexual prohibitions are similar to dietary restrictions is debatable. They key reason I can say this is that rabbinic literature does not (to my knowledge) suggest that gentiles are doing something wrong by eating non-kosher but it does suggest that they are doing something wrong by engaging in homosexual relations.”

          What if we ammend the comparison to referring to food prohibited to Noachides? Would you object to comparing homosexuality to eating eiver min hachai?

  12. smartyartblast says:

    The elephant in the room here seems to be the presumption that an honoring and committed relationship can only occur between adults if they have different genitals. The larger problem here is that people see that blithely assuming that gay people or their relationships are somehow inherently immoral is entirely irrational. And people see religions which irrationally discriminate against gay people are, well, irrational. That’s your real problem. Doubling down on outdated bigotry is just foisting your religion on its own petard.

    • Yossie Bloch says:

      You raise a salient point, but as my only secular degree is in English, may I note: religion may be foisted (forced) on others, or one may be “hoist with his own petard” (lifted), as in Hamlet.

  13. Gabriel M says:

    I think this is a very good essay and I applaud the author for his bravery.

    • David Goldman says:

      Thanks for the kind words, but why is it brave to endorse the existing position of the major Orthodox organizations?

      • Gabriel M says:

        It is brave because people who make a coherent criticism of homosexuality or gay marriage beyond “it’s against my religion” face career suicide, harassment, intimidation, legal sanctions and, on occasion, physical violence.

  14. Gabriel M says:

    I would only add one thing. The toleration of male homosexuality over the past 30 years has caused real, measureable harm. The most obvious example is the AIDs epidemic, which, in the western world, was almost entirely driven by male homosexuality and intravenous drug use. Aside from that, all the evidence suggests that male homosexual culture will always have a very high level of promiscuity. Further, because to be a male homosexual you must have a markedly lower disgust threshold than an ordinary person, it is associated with a huge range of perverted activity. The effect of allowing an open homosexual culture to become part of the mainstream has predictably been for homosexual mores to become more widespread. A certain extremely unhealthy and unsanitary activity that the Rambam says is muttar has gone from unheard of to normal among gentile heterosexuals.

    Conversely, there is no evidence that female homosexuality does any real harm at all. Lesbians are less promiscuous than heterosexuals, they do not spread disease and impose a financial burden on the rest of society and they can’t really *do* anything anyway. All lesbians I have come across are people who for understandable reasons gave up on men as hopeless and prefer to share their life with a woman instead. They display none of the narcissistic and hedonistic character traits of male homosexuals.

    The Torah is wiser than even most orthodox Jews give it credit for. By allowing liberals, rather than the Torah to pick the terms of debate we have scored a big own goal.

    Finally, it is is simply not that “American legal theory” forbids laws based on imposing a certain moral standard. This a complete historical fiction that many people, including many Jews, have maintained in the face of all historical evidence because it suits them.

    Jefferson himself personally wrote an anti-sodomy statute for the Virginia lawbook. Most states had these laws for two centuries before anyone “discovered” that they were unconstitutional. Hell a number of states actually had established churches when the constitution was created! (Further, by the by, the word “democracy” is never used in any of America’s founding documents and even a cursory reading of the Federalist papers shows that its authors were against it.)

    • micha says:

      I was not clear. I’m not concerned by what kind of legislation US Law allows. I’m saying that American law isn’t about morality, and therefore trying to legislate morality won’t work. One will get more backlash than increase compliance. It’s simply the wrong forum for the conversation of morality in the US.

      We should have that discussion. And a core part of our job as Jews, particularly as seen by Torah im Derekh Eretz where it may be the core, is to be the moral voice in the human symphony. (…. veyishkon be’ohalei Sheim.) But not by trying to hammer nails with a screwdriver.

    • smartyartblast says:

      Your issue isn’t with male homosexuality, it’s with promiscuity and unsafe sex. That is distinct from the issue of gay males in monogamous relationships.

      • Gabriel M says:

        1) Homosexual males are overwhelmingly non-monogamous. Whatever anecdotal evidence you have does not change the overwhelming statistical reality. There are obvious biological and other reasons why this is so.
        2) It is a near logical impossibility for homosexuals to have stable polygamous relationships.
        3) It follows that legalising “gay marriage” is a de facto recognition that society no longer considers it an ideal that people should abstain from all sexual intercourse outside marriage, even once they are married.
        4) The rejection of this ideal has wreaked and continues to wreak social havoc throughout the western world.
        5) Homosexual male promiscuity since legalisation has led to tens of thousands of unnecessary and gruesome deaths. That the fatality rate has gone down is not because they have started to behave better, but because the wider community has invested billions of dollars into dealing with the side effects of their behaviour.
        6) Gay marriage certainly entails a change in what marriage has traditionally been interpreted to mean (see (3)). At the very least it institutionalises a change in the concept of marriage that Judaism opposes and is deleterious to society.
        7) This fact is admitted openly if you care to look:
        “In some far-off, ideal world, this kind of openness may infect the straight world, and heterosexual couples may actually start to tackle the age-old problem of boring monogamous sex”
        http://www.slate.com/blogs/xx_factor/2013/06/26/most_gay_couples_aren_t_monogamous_will_straight_couples_go_monogamish.html

        I will close by saying it disturbs me deeply that any Jewish person, let alone one who identifies as ‘orthodox’ can defend a measure that is so manifestly against God’s expressed plan for his creatures. The Leibowitizian idea of halacha as meaningless and set of rules is now the major legitimating ideology for am k’shei oref behaviour.

  15. David Goldman says:

    Let me make clear that I am in favor of tolerating male (as well as female) homosexuality. But there is a difference between treating all human beings with dignity and declining to make an issue of sexual preference as practiced in private, and sanctifying homosexual practice. There are many homosexuals who in all other respects lead exemplary lives and make important communal contributions, and it is not up to us to pass judgment on their character.

    • Yossie Bloch says:

      1) Abraham states (Gen. 20:12), “Besides, she really is my sister, the daughter of my father though not of my mother; and she became my wife.” Jacob married 2 (according to the Midrash, 4) sisters; Jochebed was Amram’s aunt; Tamar was Judah’s daughter-in-law. All of these relationships are forbidden by Lev. 18-20. Now, if all of the relationships there are inherently wrong, how do we relate to the fact that they gave birth to the Jewish people as a whole and its greatest leaders? Are we all spiritual mamzerim?
      2) You have characterized my argument as “we must advocate for anything permissible by technical law to be permissible by secular law.” Not at all, although I do find the idea that American law should be “frummer,” as it were, then Halakha a bit bizarre. I argue the converse: there is no need to advocate against secular law just because it permits something halakhically forbidden. That will inevitably be true.
      3) Therefore, I would not support a law that bans marriage between members of different faiths; on the contrary, I would rejoice in its defeat. A religious law, determining the “sanctity” of marriage as Goldman writes, has no place in a democratic society.

      • Jon Baker says:

        Regarding (1), R’ Riskin has argued, based on David Flusser, that we take pride in our coming out of less than stellar origins. Consider, our Moshiach comes out of the combination of the line of Lot’s incest with his daughters (Moab), and the line of Judah’s incest with his daughter-in-law (Tamar). The Christians deliberately divorced themselves from these maculate origins through stories like “virgin birth” and “immaculate conception”. We don’t believe in original sin, though, so even if our origins were in families that didn’t keep the sexual relations outlined in the Torah, it doesn’t matter, because WE keep the Torah. So I don’t think there is such a thing as “spiritual mamzerim”. That’s for the other religion.

        • Yossie Bloch says:

          R. Riskin is far from the first to note that. However, that has nothing to do with my point: once it is not about halakha (what we are commanded to do is irrelevant because we are talking about values, whatever that means), why is one entry on the list of arayot considered more objectionable than another? And if it is not, why fight about it?

  16. Gil Student says:

    Yossie:
    Thank you for your correction regarding Avraham. You continue to pursue the permitted/forbidden line of argument so we are just talking in circles, which is not worth either of our times. I am not interested in repeating that we ned to look to the Torah for guidance beyond permitted/forbidden, especially since earlier you agreed with me about that.

    As to the question regarding the Patriarchs, there is a whole literature on that very issue. Perhaps most relevant to our discussion is the answer given by R. Chaim Volozhiner (discussed in section III of this post http://torahmusings.com/2012/10/the-right-side-of-history/) that the Patriarchs made exceptions for themselves because in their calculations that is what God wanted them to do. While someone cynical may find that self-serving, others who are more reserved in their judgment may find this approach satisfying.

    • Yossie Bloch says:

      I understand that you do not want to talk about permitted/ forbidden, but proper/ improper, based on values. What about gay marriage is improper based on values? If you say that they cannot form sacred unions, why not? Because the Torah forbids it? That is a forbidden/ permitted argument QED.

      • Gil Student says:

        Since we have clear indication from Chazal — two uncontested sources — that civil gay marriage is a bad thing, your question is important. Why did Chazal consider this so bad? We can speculate about that but that is different than arguing against Chazal.

        It seems clear from multiple places in rabbinic literature that some prohibitions are considered worse than others. And some permitted but frowned upon acts are also considered terrible. Chazal had values that they applied to the world. We need to learn and adopt those values.

        • Yossie Bloch says:

          First of all, the sources do not agree with each other. Secondly, they seem to conflict with others. Thirdly, they are not codified or considered authoritative. Fourthly, I will ask again: what is this value that gay marriage does not have?

  17. […] (David P Goldman at Torah Musings) H/T Rod Dreher. […]

  18. […] Can Conservative Religion Survive Gay Marriage? David P. Goldman, Torah Musings […]

  19. […] A leading Catholic writer, my friend and former colleague Joseph (Jody) Bottum, shocked the conservative world last week with the publication of an argument for Catholic acceptance of gay marriage. Jody’s essay in the liberal Catholic magazine Commonweal is wrong on many counts but sounds an alarm we ignore at our own peril. http://torahmusings.com/2013/08/can-conservative-religion-survive-gay-marriage/ […]

  20. […] TORAH MUSINGS. Can Conservative Religion Survive Gay Marriage? […]

  21. bluarrap says:

    In all of this the underlying assumption is that sex and morality are conjoined. I understand that the Jewish Orthodox opinion that supports this derives from Leviticus 18, v22 & 23 forbidding male homosexuality and bestiality. But I think that the verses that is often overlooked are Lev. 18, 24& 25 which gives us the underlying rationale – ‘…for it is by such that the nations that I am casting out before you defiled themselves. Thus the land became defiled…”
    If one believes that this is truly the word of God for all time there is no choice, it must always be defended within the religion and within the public square, for to do less would be a threat to society as a whole, and the religion in particular.
    If one believes that it is truly the word of God for the particular time in which it was written, and a rationale for the defeat and “spewing out of the inhabitants” from the land the Israelites were to inhabit then a closer examination of the immorality of other than heterosexual sexuality within the confines of religious marriage is required, starting with the question, “If homosexual behavior occurs within consensual relationships, who is harmed?” In response, the late Prime Minister of Canada, Pierre Trudeau, himself an ardent and practicing Catholic so eminently stated in 1966, “The state has no business in the bedrooms of the nation.”
    In his essay David Goldman states that sexual behaviour is so fundamental to the precepts of Judaism that to change positions on this would undermine the religion itself. Hypothetically, if there were a mechanism in Orthodox Jewry to to examine this anew and make fundamental change, perhaps the debate on the temporal versus eternal nature of these edicts would shed new light on acceptable religious behaviour today.
    One must remember that the principal beneficiaries of the sexual revolution were women. It is their acceptance in professional, scientific, legislative and judiciary roles that has materially and morally improved their lot and, is generally accepted to have improved the lot of society as a whole. Failure of Orthodox Judaism and Catholicism (and other fundamental religions I suppose) to expand the role of women within their religious confines has drawn the antipathy of women and their marginalization by society as a whole as the perpetuation of an immoral practice, even though one cannot find a verse of Bible to support it.
    Homosexuality in loving relationships, has just followed in the wake of the progress of women, and hence rightfully, in my opinion, draws the same antipathy and marginalization of those that oppose it.
    Morley Goldberg

  22. Joseph Kaplan says:

    Gil: Yossi asked: “Fourthly, I will ask again: what is this value that gay marriage does not have?” And you responded: “I will not repeat myself.” So I looked above to see what you had said before as to what the value was, and it was this:

    “Yossi Bloch asked above what the value is we are discussing. This is, indeed, the key question, which is why section III of this essay discusses it. We are discussing sexual values in general, the idea that it is a sacred bond and not merely a pleasure in which to indulge. This leads to many conclusions, among them that it should be reserved for sacred unions.”

    So what I understand you to be saying is that the value that would be violated is that sex should be reserved for sacred unions. But that begs the question of what a sacred union is. Why is a covenental monogamous commitment between two people of the same sex not a sacred union? And if the answer is because the Bible/God says it is forbidden, then aren’t we getting away from “values” and into issue veheter just like pork and shellfish?

    If you ask me what Jewish value a million dollar bar mitzvah violates although it is not expressly forbidden, I would answer modesty. And eating a glatt kosher 12-course meal, after washing your hands, making appropriate brachot and benching, is gluttonous. Those are values that get away from permitted and forbidden.

    So what I think Yossi is asking — and if not, what I’d like to know — is is there some value you can put your finger on other than the circular notion of it can’t be a sacred union because its not a sacred union that is being violated by sex between two people of the same sex who have a loving monogamous relationship?

    • Gil Student says:

      I believe that the working assumption here is that we are concerned about sexual permissiveness and hedonism. Something the Torah decries as “ma’aseh Eretz Mitzrayim” is not a chok, an indecipherable divine legislation, but an unholy practice from which all people should distance themselves. The Torah has a sexual morality which defines acceptable practices and unacceptable practices. While it has many aspects and levels, the level of “ma’aseh Eretz Mitzrayim” is looked upon particularly harshly, as is clear from Rashi and Ramban on Lev. 18:3 and the sources they cite.

    • micha says:

      The nearest term I could think of to “sacred union” is qiddushin. At it works pretty well here in context for Jews, as qiddushin refers to the step in the process of marriage at which the intimate relationship begins. But only for Jews, where nissuin and qiddushin are synonymous steps in forming the union. In a marriage among non-Jews, there is nisuin, but never is qiddushin.

      The Tzitz Eliezer deals with the case of a woman whose husband had gender reassignment surgery and now refuses to give her a gett. The TE (25:26(6)) is so convinced that the concept of qiddushin refers only to a man and a woman, that he writes that the marriage dissolves on its own, and no such gett is required. (There are opinions that gender reassignment surgery does not change halachic gender, but citing the teshuvah as proof of that particular point.)

      Apparently the wife in the TE’s case is unencumbered by Noachide nissuin as well.

      • Joseph Kaplan says:

        Am I correct in understanding your comment, Micha, to be saying that SSM between non-Jews, would not violate Jewish values and therefore shouldn’t be opposed by the Orthodox community?

        • micha says:

          No, I’m saying it’s less provable but still implied in the Tzitz Eliezer’s words. I don’t know if the Torah ascribes that much sanctity (rather than purity) to unions between Noachides, but if they do, it would be an implied in this teshuvah that it too would require one man and one woman. (Polygyny is where one man participates in a collection of such unions; each between him and one woman.)

          In any case, Judaism defines unions, and they always cross gender lines. And it frowns on sex outside those unions.

  23. David Ohsie says:

    I find this article unconvincing because the issue is not addressed head-on, but rather from an oblique angle, as if the author is not really sure of the reason for his opposition. To be fair, this is typical of opponents to SSM who try to give “non-religious” justifications for their opposition: they have trouble identifying the actual harm, nor do they have way to refute the possible benefits of SSM. In both the article and the subsequent comments by R. Student, the “non-Chok” or “rationalist argument” remains unstated or obscure.

    The arguments that brought are things like this:

    1) First, as the Catholic philosopher Robert P. George and two of his students argue in a recent book, there are strictly rational grounds to oppose gay marriage. If there are rational arguments, then why aren’t they being cited? You are arguing for a civil law policy, so this should be the first argument on the list.

    2) Gay marriage was political poison just a decade ago, but has triumphed today because of the sudden shrinkage in conservative Christian ranks. Or perhaps it is because the opponents of SSM can’t muster even one convincing argument that doesn’t rely on raw religious imperative which is not the sort of thing we want the be the basis of law in the US. Besides which, there is chicken and egg issue here. As SSM becomes a prominent issue, people who are not convinced of its evils will not self-identify as religious conservatives.

    3) The gay marriage issue is a lightning-rod for the gathering storm of secularism, and for an obvious reason: sexual liberty has been the most effective adversary of biblical religion since Pinchas killed Zimri and his Midianite mistress. From the Temple prostitutes of Ishtar to the pederasty of classical Greece, paganism has offered sexual license while biblical religion restricted sex to marriage. Anyone who came of age during the 1960s remembers why traditional culture cratered in the handful of years before 1968: my generation was the first that was told that we could have all the sex we wanted without having to get married. The sexualized ambient culture has eaten the young of the Christian conservatives. This argument is very much “guilt by association”. If you are for SSM, you must be for promiscuity. Of course, the opposite is likely to be true: marriage is one of society’s tools for fighting promiscuity and extending it to include all members means reigning promiscuity in, not promoting it (which is what is addressed below).

    4) In other words, gay couples are better off in state-sanctioned monogamous relationships than in bars and bathhouses. This argument tacitly presumes that the gay population is fixed by some external factor, for example genetic mutation and that marriage is a guarantee–the only guarantee–of monogamy. Here is the biggest issue. Yes, it is pretty clear that the gay population is fixed by external factors: the existence of gay people! The essay seems to be going to back to the notion that some heterosexuals invented a devious game for their amusement and now we have to stop them from spreading their odd game. Twin studies, for example, demolish this “theory” as if it needed demolition at this time. Also, why should marriage need to be the “a guarantee-the only guarantee” of monogamy. It is neither of those things for heterosexuals.

    5) The Jewish view from the Sages onwards is that the sexual license implicit in gay marriage is part of a pagan removal of moral barriers. This argument comes closest to the mark, but fails. Rather than making a direct cost/benefit argument, we rely on the Sages to make this argument for us on their authority and to claim that SSM implies “sexual license” and “removal of moral barriers”. Perhaps it is even so, but this argument fails in the civil context. In, the civil context, the authority of the Sages that there is some harm is not sufficient: you must be able to identify the harm yourself and make the argument. R. Student seems to go down the same path here in his comments: Your assumption that sexual prohibitions are similar to dietary restrictions is debatable. They key reason I can say this is that rabbinic literature does not (to my knowledge) suggest that gentiles are doing something wrong by eating non-kosher but it does suggest that they are doing something wrong by engaging in homosexual relations. That is the significance of the Sifra and the Gemara in Chullin regarding gay marriages. Quoting Sifra and Gemara to identify that there must be something wrong here is not a supportable argument in the civil context: if you have a principle, your must bring it yourself.

    6) Perhaps it is impolitic to say so, but if one is concerned with “pagan practices”, I’m unclear on why SSM is a great danger, but alliances with another religion are OK. I agree that today’s Catholic church is much reformed and not the threat to Jews that it once was, but if we are concerned with civil impact on I’m unclear on why SSM which has an impact on a small fraction of the population is a defining issue, while alliance with the much more powerful Church is something that goes without saying as a good.

    7) Gabriel M is intellectually honest, and actually tries to give direct reasons, but the fact that they are less than compelling is precisely the reason that SSM opponents tend to retreat into definitional arguments (e.g. “the traditional definition of marriage is between one man and one woman”. Of course this is not our tradition ).

    a) The toleration of male homosexuality over the past 30 years has caused real, measureable harm. The most obvious example is the AIDs epidemic, which, in the western world, was almost entirely driven by male homosexuality and intravenous drug use. First off, AIDs epidemic started while homosexuality was quite taboo. Fighting it required removing the taboo and openly discussing what gays and others must do in order to avoid its spread. Also, this seems not to be an argument against SSM, but an argument for civil anti-sodomy laws. Is that the the path we want to go down?

    b) Aside from that, all the evidence suggests that male homosexual culture will always have a very high level of promiscuity. I’m not ready to accept this without the evidence, but let’s accept it for the sake of argument. Which policy would lead to less promiscuity among homosexuals? Promotion of marriage or forcing of the practice into an illegal and thus hidden state.

    c) Further, because to be a male homosexual you must have a markedly lower disgust threshold than an ordinary person, it is associated with a huge range of perverted activity. This one is just absurd. You understand that if you are attracted to the same sex in the same way that heterosexuals are attracted to the opposite sex, then what appears to the outsider as “disgusting” is actually not so to the participant and in fact is the precise opposite.

    d) The effect of allowing an open homosexual culture to become part of the mainstream has predictably been for homosexual mores to become more widespread.. At this point, we’ve descended into definitional arguments. Homosexual mores? Are you claiming that they are for murder and mayhem? I think that the crime statistics show otherwise.

    8) Finally, the main issue in this debate is nowhere addressed. Gay citizens are citizens and are asking to be treated as such. They are a long persecuted minority who are now being emancipated. Sound familiar?

  24. Gabriel M says:

    “First off, AIDs epidemic started while homosexuality was quite taboo. Fighting it required removing the taboo and openly discussing what gays and others must do in order to avoid its spread.”

    The AIDS epidemic started in places where homosexuality was not taboo at all, and it is in precisely these areas where it spread most quickly and widely. Where homosexuality was taboo, conversely, AIDS was almost absent. Fighting it required the invention of retrovirals; rates of infection are basically as high as they ever were.

    “Also, this seems not to be an argument against SSM, but an argument for civil anti-sodomy laws. Is that the the path we want to go down?”

    Yes, ideally. I find it bizarre that an orthodox Jew would even consider that a reductio ad absurdum.

    2)”I’m not ready to accept this without the evidence, but let’s accept it for the sake of argument.”

    http://www.sfgate.com/lgbt/article/Many-gay-couples-negotiate-open-relationships-3241624.php
    The evidence is abundant. It’s a fact, like the the fact that an olive in Chazal’s time was the size of an olive is a fact.

    “Which policy would lead to less promiscuity among homosexuals? Promotion of marriage or forcing of the practice into an illegal and thus hidden state”

    There was much less homosexual promiscuity when being homosexual was illegal. This is, again, a fact. Conversely, there is no reason at all whatsoever that gay marriage will increase homosexual monogamy, since the whole point of the measure is to affirm that homosexuals are already equal to heterosexuals.

    “This one is just absurd. You understand that if you are attracted to the same sex in the same way that heterosexuals are attracted to the opposite sex, then what appears to the outsider as “disgusting” is actually not so to the participant and in fact is the precise opposite.”

    I am perfectly capable of doing what homosexuals do with my wife. I don’t because it is disgusting to me and to her.

    “At this point, we’ve descended into definitional arguments. Homosexual mores? Are you claiming that they are for murder and mayhem?”

    No, since homosexuals have higher IQs than straight people they tend to be less inclined to criminal and violent behaviour. By homosexual mores I mean promiscuity and deviant sexual practices.

    Finally a quote from the article above:
    “I don’t own my lover, and I don’t own his body,” he said. “I think it’s weird to ask someone you love to give up that part of their life. I would never do it.”

    That’s what gay marriage means. You can stick your fingers in your ears all you want.

  25. David Ohsie says:

    “First off, AIDs epidemic started while homosexuality was quite taboo. Fighting it required removing the taboo and openly discussing what gays and others must do in order to avoid its spread.”

    The AIDS epidemic started in places where homosexuality was not taboo at all, and it is in precisely these areas where it spread most quickly and widely. Where homosexuality was taboo, conversely, AIDS was almost absent. Fighting it required the invention of retrovirals; rates of infection are basically as high as they ever were.

    The discernable factual assertions here are just plain wrong:

    “Prospective studies of homosexual/bisexual men in San Francisco and other U.S. cities showed large declines in the annual HIV incidence rates in the 1980s. The San Francisco Men’s Health Study reported a dramatic reduction in seroconversion, from rates of 10 to 20% per year in the early 1980s to less than 1% per year from 1987 to 1988.(16,35) Similar declines were seen in other cities. In the four-city Multicenter AIDS Cohort Study of homosexual and bisexual men, HIV seroconversion rates dropped from 4% per 6 months to between 0.5 and 1.2% per 6 months between 1984 and 1989.(36) These annual incidence rates of 1% per year or slightly below continued during subsequent years. Studies initiated in the 1990s of younger homosexual men found somewhat higher infection rates among men in their twenties, but these rates were still far below the high rates of the early 1980s. The San Francisco Young Men’s Health Study found about 1.5% per year seroconverting during the period from 1993 to 1997 among men who were 18 to 29 years old when they were recruited to the study in 1993.(37)

    http://hivinsite.ucsf.edu/InSite?page=kb-01-03#S2.2X

    As to your reasoning: AIDs among homosexuals is going to be prevalent where there are more and higher concentrations of homosexuals, and people will tend to migrate to where they are more accepted, and since we live in a democracy, they will be more accepted where there are larger numbers. So again, causation is not correlation. But you way underestimate the degree to which homosexuals were and are accepted. It is still largely true that growing up and realizing that you are gay is a traumatic thing because of negative attitudes of others and “coming out” is still requires some bravery (which I understand you would characterize differently).

    “Also, this seems not to be an argument against SSM, but an argument for civil anti-sodomy laws. Is that the the path we want to go down?”

    Yes, ideally. I find it bizarre that an orthodox Jew would even consider that a reductio ad absurdum.

    If this is your approach, then there is nothing much to argue about. With this approach, one doesn’t need a long article. One can simply say: “it is assur, so it should be against US [or insert your country] law”. However, the article and most people recognize that orthodox jews (or any religious group) fighting for halacha (or their religious law) to be encoded into civil law is not a good idea because it is a recipe for utter failure and loss of influence in the best case, and for religious war and persecution in the worst case. The establishment and free exercise clauses of the first amendment are good for us. Rather, we fight for things which are “Mishpat” and not “Chok” and for which we can give rational cost/benefit arguments, possibly inspired by divine revelation and our tradition. That is why I find the article unconvincing: it seems to accept this principle and then make some very weak arguments for “Mishpat” status for this issue. It also ignores the obvious rational arguments for the benefits of SSM.

    ”I’m not ready to accept this without the evidence, but let’s accept it for the sake of argument.”

    http://www.sfgate.com/lgbt/article/Many-gay-couples-negotiate-open-relationships-3241624.php
    The evidence is abundant. It’s a fact, like the the fact that an olive in Chazal’s time was the size of an olive is a fact.

    Not sure why you think that article proves anything. The “study” did not claim to be taking a random sample of all gay people in the country and there is no control group of non-gays to compare to. Gays did not invent “open marriage” or “open relationships”.

    But again, the main point is, “who cares”? For the 45% in the study who are committed to monogamy, what “non-chok” policy purpose is it to prohibit them to get married.

    “Which policy would lead to less promiscuity among homosexuals? Promotion of marriage or forcing of the practice into an illegal and thus hidden state”

    There was much less homosexual promiscuity when being homosexual was illegal. This is, again, a fact.

    Since it is hard to measure illegal activity, I’m not going to admit these as “facts”. However, the purported facts don’t support your point for multiple reasons:

    a) When sodomy was illegal, promiscuity in general was lower. There has been a general drift in that direction over all: correlation doesn’t not equal causation.

    b) It is possible that we could reduce the overall amount of promiscuity in any small subgroup of people by making all sexual relations for that small subgroup illegal, especially if you can get the rest of the population riled up against the group and into enforcers of the policy. But so what? The question is: what policies will increase a targetted set of people to be less promiscuous and move toward committed relationships.

    “This one is just absurd. You understand that if you are attracted to the same sex in the same way that heterosexuals are attracted to the opposite sex, then what appears to the outsider as “disgusting” is actually not so to the participant and in fact is the precise opposite.”

    I am perfectly capable of doing what homosexuals do with my wife. I don’t because it is disgusting to me and to her.

    I admit to misunderstanding your point: I thought you were referring to feelings of revulsion towards male homosexuality in general. Still, my point remains: they don’t find it disgusting and gays don’t eat rotten food at higher rates that straights, so your speculation about lower thresholds for disgust is just that: speculation.

    Conversely, there is no reason at all whatsoever that gay marriage will increase homosexual monogamy, since the whole point of the measure is to affirm that homosexuals are already equal to heterosexuals.

    Ummm, why can’t it do both? Removing the Jewish quotas in law enabled more Jews to practice law more freely as well as treating them equally. Enabling Blacks to play professional baseball and then to liberate them from Jim Crow both improved their lives directly as well as asserting their equality. Marriage can encourage good behavior among homosexuals as well as heterosexuals as well as giving them equal civil rights. Where is the contradiction?

    “At this point, we’ve descended into definitional arguments. Homosexual mores? Are you claiming that they are for murder and mayhem?”

    No, since homosexuals have higher IQs than straight people they tend to be less inclined to criminal and violent behaviour. By homosexual mores I mean promiscuity and deviant sexual practices.

    Then this is a definitional argument. You are arguing that the the behavior is bad because it is immoral, but this is your value judgement (informed by Chukei Torah), but with no other support. When you actually look to see if they are immoral in an agreed upon “Mishpat” fashion, in fact they are not.

    Finally a quote from the article above: “I don’t own my lover, and I don’t own his body,” he said. “I think it’s weird to ask someone you love to give up that part of their life. I would never do it.”

    That’s what gay marriage means. You can stick your fingers in your ears all you want.

    Wonderful reasoning. How hard do think think that it will be find a heterosexual saying the same thing? Here is a start: http://www.telegraph.co.uk/news/worldnews/northamerica/usa/1523626/Einsteins-theory-of-fidelity.html.

    I think that gay marriage means…. gays can marry.

 
 

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