Banning the banns is the civil thing to do

Banning the banns is the civil thing to do


Leave it to California. The world capital of weird finally hit on an idea the rest of the country should imitate (and this column first promoted in January 2004): to take the state out of the “marriage” business.

The proposal, now looking for a spot on the next Election Day ballot, is known as “the Domestic Partnership Initiative.” If it makes it onto the ballot and passes, “state law [would] be changed to replace the term ‘marriage’ with ‘domestic partnership,'” according to an analysis by the California Attorney General’s office, adding “that marriage [thus] becomes a social ceremony that is recognized only by non-governmental institutions.”

KEEPING THE FAITH – One religious perspective on issues of the day
The reason for the measure is obvious. California has been all over the marriage map since last May, when its highest court sanctioned same-sex marriages, and Nov. 4, when the so-called Proposition Eight reversed that decision. This left an estimated 18,000 gay couples in legal limbo. Now, the California Supreme Court is poised, apparently, to uphold the validity of all 18,000 gay marriages while at the same time upholding the validity of the voter-imposed ban on gay marriage. This would create two standards for gay couples: Those married between May and November are legally married; all other gay couples can never be.

Put another way, California is about to be engulfed in a civil rights nightmare.

That is where the proposition comes in. The easiest way to resolve any civil rights issues involved is to put an end to marriage as a civil institution. “Marriage” belongs in the religious realm, in any case.

In fact, the state (the generic state, government in general) has no interest in marriage, per se. Its interest is in seeing to it that parties to a contract honor their commitments, which just as easily can be accomplished by a “domestic partnership agreement.”

Sooner or later, New Jersey will find itself in the same legal quagmire. That is because, according to New Jersey’s “Law Against Discrimination” (or LAD, for short), it must see to it that no individual or institution – public or private – discriminates against people because of a variety of reasons, including “marital status, domestic partnership status, [and] affectional or sexual orientation….”

That is very hard to do when you deny unmarried couples in longstanding committed relationships – heterosexual or homosexual, it matters not – the same rights and privileges granted to married couples.

Clearly, however, it is even harder to grant non-traditional couples such rights because of the overwhelming opposition of the religious, mainly Christian, sector of society.

It makes far more sense, therefore, to let states sanction contractual obligations between consenting adults and let “marriage” be what it always was meant to be: a religious rite.

That “marriage” is religious in nature is clear right at the beginning of “the beginning,” in Genesis 1 and 2.

We all “know” that “woman” was “taken” from the “rib” of “Adam,” thus assuring us of her inferiority. Only, what we know is incorrect. That is not what the Torah states. Woman is man’s equal and the Torah is making a profound statement regarding marriage.

There is no “Adam” 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 makes this most clear 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 “isha,” meaning woman. The word normally translated as rib, tsela, 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 (and undoubtedly for misogynistic reasons).

The commentator Rashi agrees that the word means “rib,” but only because he is loath to dispute those sages of blessed memory who so translated the word. However, he was not loath to define this “rib” correctly. 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 other words, according to Genesis 2:21, God separated His original androgynous creature into two halves, one male and one female. Then the text tells us in Genesis 2:24, “Therefore shall a man [ish] leave his father and his mother, and shall cleave to his wife [isha]; 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 of the talmudic age expanded the thought. “Any man who has no wife lives without joy, without blessing, and without goodness,” we are taught in BT Yevamot 62b. 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.

There is a great deal more to say, but no space left in which to say it. The point, however, is made. Religion – beginning with Judaism and working its way out – has always seen marriage as within its authority. At some point, almost certainly at the behest of religious authorities, the state expropriated that role.

The state must now return marriage to the religious realm. It would save everyone a lot of grief if the state saw it the same way. Go, California; lead the way.