Same-Sex Civil Marriage
by Steven Greenberg
This affidavit was submitted by Rabbi Steven Greenberg for use in Canadian lawsuits seeking recognition of civil marriage for same-sex couples. It is a response to a previous affidavit by Rabbi David Novak.
In five Canadian cities, Toronto, Montreal, Ottawa,
Calgary and Winnipeg, legislation is being introduced
to extend civil marriage rites to same-sex couples. I
was asked to offer a short response, stating my opinion
on the issue as an Orthodox rabbi. The opportunity to
write about this matter triggered my own thinking about
the areas where religion and public culture rub up against
each other.
My Response
1. I am an ordained Rabbi of America's largest Orthodox
Rabbinical Seminary, Yeshiva University's Rabbi Isaac
Elchanan Theological Seminary. I held an Orthodox pulpit
early in my career and have been a Senior Teaching Fellow
at CLAL-The National Jewish Center for Learning and Leadership
since 1985.
2. I have been asked to address the religious basis
for the extension of civil marriage to homosexual couples.
The usual split on this issue has been between the religious
right and the secular left. The religious right desires
to see certain religious values (in this case, exclusive
heterosexual marriage) reflected in the society at large,
while the secular left wishes to keep the public square
free from specific religious values which undermine legitimate
individual freedoms.
3. Marriage as an institution has deep roots in every
religious tradition. However, the very idea of "civil
marriage" was both a blow to the authority of the church
(which until then was the only venue for enacting a marriage)
and a direct import from religion into secular/civic
affairs.
Orthodox Jewish Law — Halacha
4. The Hebrew halacha is translated as Jewish law.
It is derived from the verb "to walk." Halacha is a society-building
enterprise that maintains internal balance by reorganizing
itself in response to changing social realities. When
social conditions shift, the halachic reapplication is
not experienced as "departure from the law," but as the
proper commitment to the Torah's original purposes. While
that shift in social consciousness in regard to same-sex
relations has not occurred in Orthodox communities, it
surely has in the larger society. Orthodox rabbis are
beginning to understand that their gay and lesbian congregants
are not freely choosing to be gay, but are simply discovering
themselves to be essentially different.
5. Under Orthodox Jewish law as it currently stands,
same-sex marriage is not permitted. The religious rites
of kiddushin can only be enacted between two Jews, one
male and the other female. While the rejection of homosexual
relations is still normative in most Orthodox communities,
halachists are beginning to include in their deliberations
the testimony of gay people who wish to remain faithful
to the tradition. New halachic strategies, I believe,
will, in time, appear under these changing social conditions.
6. Orthodox Judaism places many restrictions on marriage
that differ from those placed on civil marriage. Interfaith
couples cannot be married. Indeed, a number of couples
that might desire the state of matrimony, under Orthodox
Jewish law, could not be married. The traditional Jewish
community does not marry a male member of the priestly
lineage with a divorcee or a convert, nor can a child
of an adulterous union marry any Jew at all.
7. Despite the fact that civil marriage is offered
to each of these couples, one hears no protest from the
Orthodox community over the violation of its sensibilities.
Orthodox communities have grown accustomed to the challenges
of living in secular societies. Orthodox synagogues in
Canada, were they to hire an "improperly married" or
intermarried individual, would recognize the civil marriage
and provide the appropriate marriage benefits for such
persons. Rabbi Novak's speculation that Orthodox Jews
would reject civil marriage were same-sex marriages included
runs counter to the Orthodox community's historical acceptance
of civil marriage as an institution governed by secular
society.
Marriage is not a natural institution.
8. Marriage is an institution structured by societies.
All marriages are "according to the laws" of some communal
body that honors them. They are a feature of civilization,
not nature. Marking homosexual marriage as contrary to
some natural laws is reminiscent of the justifications
put forward in the U.S. for laws prohibiting interracial
marriage.
9. Moreover, all sorts of ideas about marriage have
changed. Abraham ended up with a wife and a concubine,
Jacob with two wives and two concubines. In the Talmud,
the famed scholar Rav would travel and call out, "Who
will marry me for the day?" This custom of "day marriages" was
common in Babylonia among those men who could afford
them. While surely not ideal, the rabbis of the age did
not protest this use of marriage by one of their most
revered teachers. Families are always a subset of the
society of which they are a part. Marriage, likewise,
is conditioned by the values and sensibilities of the
social context. As society has come to understand the
essential unchosen nature of same-sex desire, the offering
of new forms of matrimony that support such couples would
seem consonant with a contemporary sense of justice and
social responsibility.
10. Same-sex marriage, like marriage generally, is
a conservative institution expressing lifelong commitment,
caring, love and support. It is fundamentally not about
rights, but about duties. Central to Orthodox Jewish
teaching is the importance of family. The rejection of
gay coupling is hardly an expression of family values.
Indeed, it is just the opposite. It is surely in the
interest of families to support such unions that glue
us all together by the force of our loving commitments
to each other.
11. While it is true that procreation is one of the
intents of marriage in our society, same-sex marriages
would not prevent such endeavors any more than heterosexual
marriages require them. Surely we would not claim that
sterile couples or couples who choose not to produce
children are not "really" married. Under Jewish law such
couples might not be fulfilling the duty to reproduce,
but that would have no bearing upon the legitimacy of
their marriage. Moreover, adoption and surrogacy offer
to gay couples the same potential as they do to heterosexual
couples unable to reproduce.
12. Gay people cannot be asked to be straight, but
they can be asked to "hold fast to the covenant." Holding
fast to the covenant demands that gay people fulfill
the mitzvot that are in their power to fulfill. Same-sex
couples cannot procreate without outside assistance,
but there are other ways to build a family and a marriage.
13. The wisdom of a religious practice lies not in
the number of people that support it. Rabbi Novak raises
the issue of the size of a religious community to impugn
the views of Reform Judaism. It seems unimaginable to
me that a Jew, a member of a religion that has endured
such relentless persecution coincident with its minority
status, should invoke this notion. As a minority religion
in North America, the religious marriages of Jews are
given civil recognition despite the fact that they are
not in keeping with the beliefs of the majority. The
comfort Rabbi Novak draws from allegedly being in the
majority regarding religious views on same-sex marriage
is frightening.
Civic institutions are crucial for religious freedom.
14. While religious organizations might have a hard
time admitting it, the institution of civil marriage
is one of the public frameworks that allow religious
communities to thrive. It allows synagogues and churches
to do what they do, to restrict or extend membership
and offer or deny access to their services and rites
according to their principles. Civil alternatives for
contracting a legally recognized marriage insure the
freedom of religious communities to shape their own rules.
Without civil and diverse religious alternatives for
contracting a legally recognized marriage, those who
do not conform to religious rules would put great pressure
on religious organizations to change.
15. Civil marriage provides an umbrella under which
we all can live, despite our very passionate differences.
The state ensures that marriage is not denied to anyone
based on a couple's particular religious beliefs or their
lack of any religious beliefs. Civil recognition is extended
to secular marriages and to marriages according to diverse
religious traditions, practices and beliefs, including
to persons who do not meet the criteria of one or more
religions. Conversely, the state does not require any
religion to marry anyone who does not meet its criteria
(for example, an Orthodox rabbi cannot be compelled to
marry a Jew to a Gentile). This situation is not a cause
for concern, but rather for celebration. That the civil
concept of marriage and diverse religious conceptions
of marriage can co-exist not only demonstrates the ability
of civilly recognized marriage to be flexible and to
be separate from religious practice, but it also ensures
the ability of religious marriage to choose its own course.
That is certainly a victory for freedom of religion.
