Now that New York State has legalized same-sex marriage and is joining in a challenge to the constitutionality of the federal Defense of Marriage Act, it is appropriate to revisit the same-sex marriage question.
Keeping the faith“Revisit” is correct, because a version of this column appeared almost exactly one year ago, last Aug. 22, after the Ninth Circuit Court of Appeals agreed to consider the constitutionality of California’s controversial Proposition 8, which banned same-sex marriage. Issues involved in that case were subsequently referred back to the California State Supreme Court and hearings are expected to begin next month. This is another reason why revisiting the issue is appropriate.
Let me state this at the outset. This column is not about how I view same-sex unions. It is about whether the word “marriage” is a uniquely religious one.
I believe it is. “Marriage” should be relegated to the religious realm where it belongs. Government should not differentiate between same-sex couples and heterosexual ones – but government also should not decide who may or may not marry. Marriage is not a secular concern.
The state (i.e., government in general) does have some interest here in that “marriage” is a contract, albeit an oral or implied one (“religious” contracts, such as ketubot, are outside the state’s purview). States are obliged to insure the integrity of contracts. This interest, however, can be better served through the use of a written contract with standardized terms. The resulting union would be called a “domestic partnership” and would be available to all. Marriages, as such, would be the province of religious authorities. “Married” couples would have to sign domestic partnership contracts if they want their unions to be legally protected.
Such 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.
Sooner or later, New Jersey will have to confront this issue head on, because state law leaves it with little choice. For one thing, New Jersey already recognizes the validity of same-sex marriages performed in other jurisdictions, and the state is now surrounded by such jurisdictions or is near them (New York, Connecticut, Massachusetts, New Hampshire, and Vermont). Moreover, according to the state’s “Law Against Discrimination,” New Jersey must not permit an individual or institution – public or private – to discriminate for such reasons as “marital status, domestic partnership status, [and] affectional or sexual orientation.”
This leaves the Garden State with very little wiggle room.
That “marriage” is religious in nature is established in Genesis 1 and 2. The Torah is making a profound statement regarding marriage.
Translations and commonly accepted “fact” notwithstanding, “Adam” is nowhere 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.
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 it is so used throughout the Tanach. Only in this one instance is the word mistranslated as rib, probably to reinforce the notion of the inferior status of women. In the Torah’s view, 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)â€¦.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 restored.
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.
Does this mean that same-sex unions are forbidden? The Genesis text, at least, makes no statement about the permissibility of same-sex unions (and this column offers no opinion, as stated earlier). Genesis 1 and 2 serve only as a source for defining the word marriage. Whether that word is narrowly or broadly defined is for religious authorities to debate and decide. Some see the term as gender specific. Others see it as gender neutral. However they see it is none of the state’s concern, just as whether a giraffe is kosher or halal is none of its concern.
On the other hand, enforcing civil contracts is the business of the state. It would save everyone a lot of grief and a lot of money needed elsewhere if the state saw it the same way.