Rabbis disagree on ruling

Top court decision on same-sex marriage draws a range of response, comment

By Lois Goldrich July 5, 2013, 10:55 am Edit

Last Wednesday, Supreme Court decisions overturned a key part of the 1996 Defense of Marriage Act, which mandated that federal laws abide by a definition of marriage as between a man and a woman, and ruled that the people who sought to overturn a California Supreme Court decision recognizing same-sex marriage had no standing to sue.

Local rabbis reacted to the decisions.

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Rabbi Rebecca Sirbu of Teaneck, who is Conservative and the director of Clal’s Rabbis Without Borders, was positively joyous.

“I think it’s fabulous,” she said. “I think to uphold the sanctity of a union when two people want to commit to each other for the rest of their lives is something that we as a society, as a government, and as the Jewish people should do.”

She conceded, however, that there is “not unanimity in the Jewish community” on this issue.

“People who have stood opposed to legalizing [same-sex] marriage will continue to do that,” she said. “Those who are for it will celebrate with even greater joy.”

Sirbu noted the talmudic teaching “Dina d’malchuta dina” – the law of the land is the law – speculating that because marriage is also within the religious realm, synagogues might now be spurred to “go through a process” that will lead to greater acceptance of same-sex unions.

She pointed out that there are many Conservative rabbis who will do same-sex weddings. While she has not yet officiated at such a ceremony, she has participated by reading the sheva brachot under the chuppah.

Sirbu said that because the state of New Jersey does not permit same-sex marriages, here “no one can get married today who couldn’t do it yesterday.” Still, she said, she thinks it will spur the movement to legalize such marriages in states that now do not permit it.

“The arc bends toward justice,” she said, quoting Dr. Martin Luther King. “It happened in the civil rights era and for women’s rights, and now it is happening for gay rights. The secular government and religious institutions should bend toward justice. Increasing love in the world is a good thing.”

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Rabbi Shmuel Goldin of Congregation Ahavath Torah in Englewood, who is Orthodox, said he wanted to “reiterate the position that I have held both personally and as president of the Rabbinical Council of America. From our perspective, marriage is a sanctified concept and is reserved for a sanctified relationship between a man and a woman.”

However, he said, there is a difference between a marriage and a partnership, and “I am not against those individuals who have same-sex partnerships receiving the governmental benefits that are given to couples. I just object to calling it a marriage.”

Goldin said his objection is “more philosophical and theological in nature.” In preferring that same-sex unions not be called marriages, “part of my concern becomes when we raise children and create in their minds [the idea of] options.”

In addition, he said, if such unions are labeled marriages, the question of whether the government will force rabbis to perform such ceremonies against their religious beliefs arises.

“That’s concerning to us,” he said. In addition, “educationally, to raise children in a world that does not draw clear delineations is problematic.

Goldin said that while any high-profile issues inevitably creates greater awareness and interest, “there’s already a great deal of discussion going on in the Orthodox community on how to deal with this issue.

He cited a 2011 RCA statement that reads: “While homosexual behavior is prohibited, individuals with homosexual inclinations should be treated with the care and concern appropriate to all human beings.”

Asked if the Orthodox position was likely to change in the future, Goldin said, “You have to remember that from our perspective, there’s a clear biblical prohibition on the same-sex act. I don’t believe there will be a point where the Orthodox rabbinate will sanctify same-sex unions.”

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Rabbi Elyse Frishman of Barnert Temple in Franklin Lakes was extremely pleased by the Supreme Court decisions.

“Everyone, once in a while, feel blessed to live in a particular era. I feel blessed to be living now,” said the Reform rabbi, who began performing same-sex commitment ceremonies 11 years ago. “I feel that something has opened up for human beings that has been closed for way too long. It’s evidence of God’s presence in our world.”

Frishman said that in theory the Supreme Court should be above public opinion. It is essential for the court to respond in terms of “what justice is. ‘Tzedek, tzedek, tirdof – justice, justice, you should pursue.’ I hope the court made that decision because it was the right thing to do.”

Frishman cited the recent decisions in Israel granting women and non-traditionally observant Jews increased religious rights.

“With these decisions in Israel and now this, it feels like we’re in the Age of Aquarius,” she said.

Although she does not know what the implications of this decision will be for the Jewish community, she said, “for the liberal Jewish community and for secular Jews, this will open the door for greater insight into homosexuality. Down the road, the more that we have the experience of seeing gay and lesbian couples as normal and as we watch their children grow into society, it will be easier for those more resistant to understand.”

She cannot predict, however, whether there will be changes in the Orthodox community, “where halachah can be a binding code.”

“Jewish thinking begins to change as views on human rights are changing,” she said. “Judaism needs to meet real human beings or it is irrelevant. Judaism is a profound wisdom for how to live one’s life. I deeply believe in God’s love for every human being. Yes, some things are sins. Homosexuality is not one of them.”

Frishman said that since “every positive decision like this has reverberations, for a period of time there can be strong resistance.”

“I would expect some kind of negative reaction,” she said. But over time, “it will become more obvious that homosexuality is not abnormal. It is part of normal.”

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Rabbi Ben Shull of Temple Emanuel of the Pascack Valley in Woodcliff Lake, who is Conservative and the head of the North Jersey Board of Rabbis, said that while the rabbinical group has not yet discussed the issue formally, he imagines that he will find a variety of opinions among his colleagues.

“I assume that a significant number will be pleased, and some will have issues” with it, he said.

Shull noted that “the issue of same sex marriage is critical to our society and highly charged. Personally, I am more conservative on the issue. I realize that I am now in the minority”

Shull said that his own personal struggle is “balancing between the rights and concerns of gay and lesbian couples, which are legitimate … and the weight of our Judeo-Christian tradition, which attaches primacy to the male-female relationship.”

While there clearly has been a shift in societal attitudes, and people whose opinion he values greatly support same-sex marriage, “I still believe that I am responsible to a tradition that asserts that marriage – kiddushin – means recognizing the male and female relationship as the cornerstone of society,” he said.

“I support civil unions and other arrangements that afford gay and lesbian couples the same legal rights as heterosexual couples,” he added. “Though this is not the full equality that many seek, I still believe that our society should reserve the term ‘marriage’ for the union of one man and one woman. Rather than being prejudiced against the same-sex couple, I hope that I am being prejudiced for the male-female couple and the unique contributions this union brings to our world.”

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Rabbi Adina Lewittes of Sha’ar Communities, an unaffiliated group, said she is “extremely happy and encouraged by the direction the Supreme Court has set for the country.”

On the question of whether the court was responding to public opinion, she noted the “growing momentum for marriage equality across the board” and said that while she’s sure that the court’s legal theory is of great interest to many, “it would be hard to deny that – similar to other changes in the country, such as with other civil rights issues – there is a process of education and acculturation that yields a growing broad-based embrace of the notion of human dignity and equality.” And that, she said, “makes for a stronger, more peaceful, and just society.”

Lewittes said she thinks that the vast plurality of Jews and Jewish organizations have embraced the issue of same-sex marriage as a civil rights issue “with increasing energy and commitment over the last many decades.” She thinks the Supreme Court decisions will continue to reinforce those impulses and hopefully propel a continuing commitment” to the rights of the LGBT community.

Recognizing that there are religious communities within the Jewish world and outside it that will continue to have theological and religious resistance to this issue, Lewittes said, “They will continue to negotiate this issue as they see fit in the same way as they do other issues … negotiating their own internal interpretations and standards in the face of shifting perceptions and policies within the general society.

Lewittes said that the people with whom she works have been “ahead of the game in terms of seeing the issue as an important civil rights issue to advocate for and stand up for. Within Sha’ar Communities we will celebrate the fact that our values, and the causes we feel strongly about, are being embraced and recognized by more people and the highest legal authority in the land.”

Others may be moved to speak out as well, she said.

“There are always people for whom seeing the trends around them does make it easier to raise their voice and plant their feet firmly in the ground of civil rights,” she said. While “not everyone is an activist, their membership in forward-thinking organizations reflects their support of the issue.”

Lewittes said she is “very hopeful” that the Supreme Court rulings will spur other states to pass legislation legalizing same-sex marriage.

However, she said, there is still much to be done.

“As much as we will celebrate, it is important to remain vigilant in our efforts to work for the full enfranchisement of LGBT rights and marriage equality legislation. There’s much to celebrate and much work yet to be done.”

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Rabbi David J. Fine of the Conservative Temple Israel and Jewish Community Center in Ridgewood said, “It was a very good decision, signifying a major step in a larger worldwide development on the acceptance of same-sex couples on an equal basis with heterosexual couples.

“The implications for the Jewish community are that now clergy have more authority to solemnize unions if they wish to do so,” he continued. “I testified before the New Jersey Senate Judiciary Committee on this issue last year, saying that the state ought to respect the decisions of religious groups and not dis-establish our right to solemnize unions if we interpret our religious traditions in ways that authorize those solemnizations.

“I don’t think this is a direct example of the public driving judicial opinion. The two operate in a symbiotic relationship. But I don’t see significant changes to synagogues. The court basically confirmed each state’s right to determine the definition of marriage. Should the governor decide to lift his veto of the New Jersey legislature’s same-sex marriage bill, then we might see an increase in same-sex couples in our synagogues, and we all will benefit from that.

He noted that the decision is in line with a position he argued in 2006, at the deliberations of the Conservative movement’s Joint Committee on Jewish Law and standards. (Although his responsum was not accepted then, last year, affirming that same-sex marriages have “the same sense of holiness and joy as that expressed in heterosexual marriages,” the movement established rituals for same-sex wedding ceremonies.)

“The responsum that I co-wrote with Rabbi Myron Geller and Rabbi Robert Fine posited that Jewish law prohibited same-sex behavior because the Torah and the rabbis could never imagine that same-sex couples could get married and raise children,” Fine said. “Today, we argued, this is possible, with same-sex marriage gaining more and more acceptance, so that the nature of society has changed and the attitude of Jewish law can be adjusted according to the change.”

The responsum went on to argue that “today … the intent of the Torah, that Jews commit to sanctified relationships and seek to raise children, is accomplished rather than undermined through the celebration of same-sex marriage.”

Fine said that a majority of the rabbis on the committee disagreed with the argument, holding that same-sex marriage was not as socially accepted as claimed, that only very few states and countries allowed it, and that the federal government did not.

“Now, while not mandating same-sex marriage, the Supreme Court has confirmed a state’s right to solemnize such marriages,” Fine said. “This is a victory not only for the gay rights movement, but also for the vast majority of religious denominations, Jewish and Christian, who support (or allow for) same-sex marriage. Clergy can now perform such marriages, at least in the states where they are legal such as New York, and know that their blessings are respected by the supreme law of the land.

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Rabbi Lawrence Zierler of the Jewish Center of Teaneck, who is Orthodox, said that as a traditionalist, he defines marriage as the union of a man and woman. Nevertheless, overturning DOMA was justified both as a humanitarian measure and as a constitutional issue.

“Constitutional issues are at the forefront,” Zierler said. “Federalism lets the states govern [and] experiment,” as in the case of abortion and medical marijuana, which are treated differently in different states. “The Supreme Court has enhanced the right of states to be able to legislate and adjudicate. What good is a law if the federal government doesn’t allow it?”

Noting the “Jewish take” on the issue, the rabbi said that “one wants to see [the rights of] any two people in meaningful and caring relationship secured by whatever means,” particularly when it comes to such matters as health insurance and inheritance.

“It’s not just an issue of gay rights,” he said, noting that people deserve these benefits “when they’re taking care of each other.”

He pointed out that such rights also should exist for relatives, such as brothers and sisters, who through force of circumstance end up being caretakers for their siblings.

“It’s a moral issue,” he said, suggesting that it should be divested from theological issues.

“The morality of Judaism has to make sure that they’re not left bereft – not only emotionally, but of the material means needed to be able to live in the absence of the other,” he said, citing the case of Edith Windsor, the plaintiff who brought the DOMA challenge. After her spouse, Thea Spyer, died in 2009, Windsor was forced to pay $638,000 in estate tax payments to the IRS and New York State because her marriage to Spyer, her longtime partner, was not recognized legally.

“It’s not for me to know how they allegedly behaved in terms of sexual association,” he said. “It’s an issue of protection and security… based on years of responsibility, loyalty, and dedication.”

The defeat of California’s Proposition 8, however, “is a different ball of wax,” Zierler said, describing the struggle there as potentially “winning the battle and losing the war.”

He said the fact that “so much was invested in a progressive state to deny people the right to marry” reveals pent-up hostility that is bound to resurface.

While the court ruling “created celebration,” he said, it also created something “larger than the original struggle. You have to consider what you’re fighting for.”

Zierler said that while he remains committed to the definition of traditional marriage, he does not believe in “expending negative energy in trying to snuff out alternative arrangements. You get a lot more by example than by intimidation,” he said, pointing to the positive effects of educating those “who come within our orbit to try to appreciate the original model.”

“We’ve seen in our own community that trying to raise a banner can create a hue and cry can that backfire,” he said, noting that his position has always been to welcome people with different lifestyles into his religious community.

The rabbi cautioned against defining people by their sexual orientation. Rather, he said, “individuals are composites of a lot more facets and features.”

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