A civil solution

A civil solution

The future of California’s controversial Proposition 8 remains up in the air following a decision by the Ninth Circuit Court of Appeals to consider its constitutionality. The proposition, actually a constitutional amendment passed by the state’s voters in 2008, bluntly states that “only marriage between a man and a woman is valid or recognized in California.” The amendment was the voters’ reaction to a California State Supreme Court ruling that validated same-sex marriages. Last week, a federal judge ruled that the amendment was unconstitutional. On Monday, the Ninth Circuit agreed to hear a challenge to that ruling.

I agree with those who argue that government should not differentiate between same-sex couples and heterosexual ones. Yet I also believe that no government, at any level, should be involved in marriage in the first place. “Marriage” belongs in the religious realm, not the secular one. Getting government out of the marriage business is the easiest way to resolve the civil rights issue.

The state (i.e., government in general) has no interest in marriage, other than generating income by charging a fee for marriage licenses. Because civil marriage is a contract, albeit an oral or implied one, the state’s only concern is seeing to it that parties to that contract honor their commitments. That interest can be better served, however, through the use of a written contract with standardized terms (for which a fee would be involved, thus resulting in no loss of income to the state). The resulting union would be called a “domestic partnership.” Marriages would be the province of religious authorities, but would have no legal validity.

Keeping the faith: One religious perspective on issues of the daySuch a solution allows the state to validate all unions, even as it allows religious authorities the freedom to decide whether to discriminate against some of them.

This is not just a California issue. Other states are wrestling with it and, sooner or later, New Jersey will have to confront it as well, because state law demands it. According to the state’s “Law Against Discrimination,” New Jersey must not permit an individual or institution – public or private – to discriminate for a variety of reasons, including “marital status, domestic partnership status, [and] affectional or sexual orientation….”

That “marriage” is religious in nature is established in Genesis 1 and 2. The Torah is making a profound statement regarding marriage. (The fact that this statement is made in Genesis 1 and 2 is important in itself, as will be explained.)

Translations and commonly accepted “fact” notwithstanding, there is no “Adam” to be found in Genesis. Rather, there is “the adam” (the article is either attached to “adam” or implied) and it is clear that adam is a word meaning human, not the name of a man.

The Torah underscores this in Genesis 5:1-2: “Male and female He created them,” it says. “And when they were created, He blessed them and called them adam.”

In Hebrew, man is not “adam,” but “ish,” and ish appears only after the creation of “ishah,” meaning woman. The word normally translated as rib, tzela, actually means side and so it is used throughout the Tanach (where a full side of something is always meant). Only in this one instance has anyone ever had the temerity to mistranslate it as rib, probably for such a misogynistic reason as offering proof of the inferior status of women. That is not what the Torah states. Woman is man’s equal.

Even the commentator Rashi, who translates tzela as “rib,” defines this “rib” as side. Said he, “the meaning is that of side [rather than the anatomical definition of rib], as in ‘the second side of the Tabernacle (Exodus 26)….He [God] divided him [the adam] into two, for he was male on one side and female on the other.'” (See Rashi’s comments, beginning at “hatzela,” in the Babylonian Talmud tractate Eiruvin 18a. In this way, Rashi seeks to resolve the conflict between those talmudic Sages who translated tzela as rib and those who translated it as side.)

In other words, according to Genesis 2:21, God separated His original androgynous creature into two halves, one male and one female. The text then tells us in Genesis 2:24, “Therefore shall a man [ish] leave his father and his mother, and shall cleave to his wife [ishah]; and they shall be one flesh.” By the union of a man and a woman, the perfect creature of Creation, the adam, is symbolically reproduced.

The Sages expanded the thought. Thus, states BT Yevamot 62b, “any man who has no wife lives without joy, without blessing, and without goodness.” On the very next page (63a), it adds, “Rabbi Eleazar said: Any man who has no wife is no proper man; for it is said, Male and female created He them and called their name Adam.”

The Sages went so far to describe how God feels when a man does not marry in a timely fashion. “Rava said, and the School of Rabbi Yishmael taught likewise, that until the age of 20, the Holy One, blessed be He, sits and waits [for a man to marry]. ‘When will he take a wife?’ [God wonders.] As soon as one reaches [the age of] 20 and has not married, He exclaims, ‘Blasted be his bones!'” (See BT Kiddushin 29b.)

This attitude is seen in the law codes as well. For example, the prayer leader for the High Holy Days, according to one source, “should also be married.” (See Rabbi Moses Isserles’ gloss to Shulchan Aruch Orech Chayim 581:1.) It is not an absolute requirement, but it does suggest that being married is the way to go.

At this point, a counterargument may be offered. As I often argue, Judaism is not a religion, but a nation with a religious component. It follows, then, that the Torah’s espousal of marriage is actually a “matter of state,” not “of church.” That is why the statement about marriage made by Genesis 1 and 2 is critical. It comes not only before there was an Israel, God’s “kingdom of priests and holy nation,” but before there existed a state in any sense. Genesis 1 and 2, therefore, offer a clear expression of how God views marriage – and that puts marriage in religion’s realm, not the state’s.

There is a great deal more to say – for example, that marriage is so important in the Torah’s eyes (and hence in halacha’s) that being engaged is sufficient reason for military deferment in wartime (Deuteronomy 20:7) -but the point is made. It would save everyone a lot of grief if the state saw it the same way.

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