June 15, 2012

Civil Marriage


Who opposes civil marriage? It seems that religions are the main campaigners against it. Despite my love affair with Judaism I am a strong advocate of separating State from Religion.

There is a disconnect between a system based on Divine Revelation, conservatism, and giving authority to men and women who put faith above all else, and on the other hand one based on giving everyone an equal vote and allowing individuals to do whatever they want to so long as they do not affect or endanger others. Neither system is perfect. They both suffer from human nature degrading an ideal. But they are two very distinct models of governance. Although both systems can end up exercising horrific violence on their own citizens and others, on balance I prefer to live in a country where there is as little religious interference as possible and people can choose how much they want to take on.

The Jewish experience of living under Shariah law, specifically in Iran, was so degrading and humiliating (it was only pressure from the imperial powers that forced the Qajar dynasty to allow a modicum of equal rights to Jews at the start of the twentieth century). Neither am I too keen about ultra-Orthodox rabbis controlling my behavior. I may respect them, but I’d rather make my own decisions.

Since the great Babylonian rabbi, Shmuel, declared two thousand years ago, that “the law of the land is the law”, Judaism has accepted civil law with the sole proviso that it is applied fairly and to everyone. So whether we choose to live in a society influenced by Christianity, Islam, or any other religion, we have always abided civilly by their definitions of who is married. We do not say, “Since we don’t accept other religious marriages, we can make off with another man’s wife.”

As modern democratic societies have changed, so too have the ways we look at human relationships. The area of civil unions has evolved. We have had to accept the financial and legal implications of such unions, regardless of our own religious systems. For the first time many Muslims, who now increasingly live in non-Muslim societies, are having to slowly come to terms with such a situation.

In Western democracies, recognized partnerships bestow certain privileges as well as obligations. Partners benefit from tax, inheritance, pension, and insurance law, to mention only the most obvious. In the nineteenth century, when (largely thanks to the French Enlightenment and Napoleon) the first moves were taken to restrict the role of churches, civil partnerships were introduced, so that couples could "get married" without the “benefit of clergy". At that stage, for whatever reason, it was agreed to call such civil unions "civil marriages", even though neither the Church nor the Synagogue considered them to be marriages as they defined them. Perhaps it would have been better to have given then some other name such as “union” or “commitment” or “bond". Marriage was hitherto only applied to a religious ceremony.

When I first heard about gays and lesbians getting married, my initial reaction was that I could not think of any objection, but why call it marriage--call it something else. But on reflection, it is no different to a man and woman getting "married" civilly. Only a religious argument could possibly be leveled against it, so why do religions keep quiet about civil marriages between heterosexuals? The only objection could be a religious one, and I think religions should keep out of other people’s business. No one is forcing anyone to recognize a religious ceremony that is offensive to him. All the State is saying is that the couple have entered into a binding civil commitment. Many of us do this all the time in commerce and trade.

What’s the problem? The word? The language? Usages change all the time. In Shakespeare’s day "nice" meant stupid. In my youth, being "gay" meant being happy. The word "anthem" once meant a religious choral piece. Now it’s a nationalist song about being better and prouder than the other guys!

I have heard it argued that by agreeing to civil marriages one is undermining the religious position. But why is this undermining personal faith any more than stores being open on Sabbath or restaurants offering non-kosher food? No one is forcing anyone to go there. Indeed, “render unto Caesar what is Caesar's". The role of religion, in my humble opinion (OK--not so humble) is to persuade, to infuse spirituality, to try to improve human beings. Let them put their energy into buttressing their own institutions and rooting out the corruptions and abuses that we still see. If religions insist on campaigning politically, I would argue, for example, that all religions should come together to support educational vouchers. This way religions benefit as well as others. Vouchers support and go to individuals instead of institutions.

There are enough negatives and constraints in religions without adding more. Lay off I say and let people commit themselves and call it what they will. No one is forcing anyone to anything they don’t want to. Just because politicians play games with this issue, on both sides to win votes, we do not need to descend to their level.

25 Comments:

At 9:18 AM , Anonymous Shoshi said...

Why does the state have to get involved in marriages at all? What business is it of theirs? They can have laws pertaining to the care and maintenance of children, and there can be contractual arrangements between individuals (of whatever gender or orientation) regarding inheritance and other rights and responsibilities usually related to spouses.

Government needs to catch up with the fact that society has changed dramatically and marriage already DOES NOT mean what it did 50 years ago, even. People *constantly* have children without being married, and even those couples who marry *frequently* get divorced and often marry multiple times over the course of their lifetimes. Women work and no longer need the support and protection of a man. Unmarried couples sue each other for "palimony". Children need support regardless of the marital status of their parents.

I recently read an article about how various Conservative clergy have tried to meet the challenge of creating a Jewish marriage ceremony for homosexuals. Obviously, the traditional ceremony is based on rigid gender roles that relate to ancient times much more than the 21st century. So many have felt it inappropriate, or at least confusing, trying to superimpose these ideas about gender onto a same-sex union. One solution was rather than to use the traditional wedding template, create a Brit Reut--based on halachic contracts between business partners.

But I thought, why should that be restricted to homosexuals? Honestly, it more reflects the modern conception of marriage as a partnership between to equal human beings, rather than the acquisition of one person by another, with requirements to provide for that person. Indeed, I have now come across the idea being applied to heterosexual couples as a Brit Ahuvim (http://www.reutcenter.org/articles/Ruttenberg_Kiddushin_Variations.pdf).

Obviously this removes so many objections people have to the customary marriage laws, such as women not being able to initiate divorce, the agunah situation, not having a right to one's earnings, etc. Everything can be dealt with contractually, with terms acceptable to both parties.

As far as I have been able to think about it, it does not seem to create halachic problems (the children are not considered "illegitimate" and the union is not considered adultery). Perhaps just the rabbinic ban on non-marital sex?

I don't see that the former approach to marriage, which was quite a step up from primitive arrangements in protecting the woman and preserving the home, is inherently superior to a more equitable partnership, whether one is gay, straight, secular, religious, or whatever. Let the hospitals and governments and court systems respect our legal contracts. And should anyone wish to marry according to their religious laws, so be it.

 
At 9:48 AM , Anonymous Adam said...

Rabbi Rosen,

Are you advancing the position that the only
reasons for not favouring gay marriage are
religious ones?

 
At 7:27 AM , Anonymous Anonymous said...

I agree with you that state and religion should be seperated. As you know all coutries where they don't do has lots of problems and seemed to turn into a dictatorship like the most extreme Orthodox people dictate everybody else what to do and do not allow pluralism. We should be able to choose under what kind of conditions we want to marry. I am very pro-gay and think that loving relationship between same-sex couples as well as hetero couples is very acceptable and should be aimed for. Abusive relationships of combination is not acceptable and very unhealthy and damaging for the people involved. Masorti as well as Liberal and Reform argue that the law a man shall not lie with man as he does with a woman has to be taken in context with the time it was written. It used to be an act in context of religious idolworshipping which is of course forbidden and in our understanding or moral mind horrible and abusive. It is not a loving relationship. They also did the same with people doing it with animals which is also forbidden in our laws. The country laws may catagorize it animal abuse.
Sabine

 
At 9:14 AM , Blogger Rabbi Jeremy Rosen said...

Shoshi:
Indeed there is a strong argument for the State not to be concerned with rituals but simply with contractual obligations. If States would agree to drop the idea of what we call marriage I'd be delighted. Can't se it happen. Its like Nationalism. I deplore it but since it is the currency of political discourse and no one has yet agreed to ban States altogether we have to deal with what is, not with what we might dream of.
J

 
At 9:14 AM , Blogger Rabbi Jeremy Rosen said...

Adam:
See my reply to Shoshi.
J

 
At 2:01 PM , Blogger Rabbi Jeremy Rosen said...

Sabine:
There are indeed various ways of understanding the term TOEVA as used of Homosexuality , types of Heterosexuality, forbidden foods etc etc where the word can clearly mean "not appropriate in a specific context" wich includes the point yoin make of diffetentiating a psagan culture from a monotheistic one. But either way I agree, religion cannot and shouldm't in the present circumstances be the same as civil society and vice versa.
J

 
At 3:40 PM , Anonymous Anonymous said...

Rabbi Rosen - Without simultaneously appearing to be both ultra-liberal and arch-conservative, let me say that as a Libertarian Modern Orthodox Jew I share your attitude towards the State sanctioning a religious ceremony with civil perquisites and penalties; in essence committing two "evils"": forcing the civil state to be an effector arm of "The Church" (All religions), and two, delivering the above mentioned perquisites (and yes responsibilities and penalties too) to "couples" whether or no a particular person agrees with the latter, in addition to the former.

I am all for civil unions as a demonstration of two peoples' comittment to each other. However, as a citizen, I can lobby to not have funds allocated out of the taxes ** I ** pay to support a particular highway, or school, in favor of a different highway, or school. I can even vote, lobby, run for office, and attempt to persuade, as a Libertarian, to drastically cut governmental expenditures (i.e. taxing ME) on welfare, tax breaks for marrieds, tax breaks for religious institutions, etc.

So, while I wholeheartedly endorse a "hands off" position on restraining and restricting non-heterosexual marriage, I *** FIERCELY *** am against opening up a whole new category of millions of people being able to legally steal more of my tax dollars because of their state approved "marriage".

Avoiding the "singles" tax penalty, being able to double dip on social security after your "spouse" dies - even if you've never worked a day in your life, etc. . . .poppycock! (In fact, while were at it, as per B.O's "fair share" of the taxes, and "everyone has to have skin in the game" let's abolish preferential tax credits for heterosexual couples as well. . . but in the meantime, at least let's not throw good billions after bad trillions!)

[And yes, I understand the palaver of society choosing to establish a monetary persuasion chute through which people are led by the nose / pushed with a cattle prod economically because of the so called stability to society that the nuclear and extended family brings. Except on the one hand - "quadrillions" have been spent on it over the past 70 years and it hasn't worked in secular society to improve morals, family stability, literacy, health [choose your statistic] - and in "Orthodox" worlds is abused as entitled graft with deligitimation of the giving government in the eyes of the recipients. So I don't disagree with the "importance" of the nuclear family - just funding it out of MY pocket.]

Michael H

 
At 4:56 PM , Anonymous dk said...

Jeremy -- will you marry me, to a woman?

Imagine, we show up, on your doorstep and say, "we're in love, we want to get married".

What would you say? "Mazel tov, that's marvellous, and thanks for choosing me to preside over your wedding. A couple of lesbians to marry is just what I've been waiting for!

Or, would you say something less enthusiastic, and perhaps direct me, and the woman of my dreams, to go and discuss this with some other rabbi more of the Ner-David or Ruttenberg ilk?

We might object and say, "but you don't understand, we're quite mainstream, conservative sorts really, we're just not into men. We listen to the Archers, mow the lawn on Sundays, and even post comments on a conservative rabbi's blog! We don't mind that marriage bolsters the patriarchal, capitalistic hegemony, because so too does lots of other stuff which we all tolerate. We just want a nice Jewish wedding, complete with seating plan arguments and a gift list at John Lewis.

Joking aside, would you conduct a GBLT marriage?

If you would, do you also have a reinterpretation of the strictures on the flesh pots of Egypt where various non heterosexual unions were reputedly tolerated, and which we are meant not to imitate, and the rest which follows on how extramarital sex between two women is not really sex so it doesn't warrant the usual punishment for infidelity? It's all rather Queen Victoria, isn't it, but I assume it can't be dismissed as merely quaint. But surely you don't presume to know more about lesbians than Maimonides?

 
At 5:14 PM , Blogger Rabbi Jeremy Rosen said...

Michael:
Yes I think it is one of the biggest challenges of welfare societies to find the right balance between over indulgence and pasimoniousness. At this moment the abuses wherever one looks are so great they undermine the fabric of welfare. And I agree, partners privileges as a generalizartion as opposed to Quid Pro are extravagances.
J

 
At 12:09 PM , Blogger Rabbi Jeremy Rosen said...

dk:

I would not prerform Kiddushin on anyone the Torah does not recognize as being eligible for Kiddushin.

However I have in the past given my blessing or performed a sort of ceremony short of real Kiddushin on certain types of couples such as a Cohen who could not marry a divorcee or a Jewish paraplegic who wanted a blessing for the non Jewish nurse who had been tending him for years. I see nothing wrong in helping people feel good about themselves particularly in unusual and extenuating circumstances where they feel and want to remain Jewish even if technically their behaviour is outside of normative halacha.

 
At 5:57 PM , Anonymous dk said...

If the two lesbian fans of The Archers, looking for a mainstream Jewish wedding, did not fall "outside of normative halacha", and so were "eligible for Kiddushin", would you marry them?

There are after all, a lot more of them than Cohens trying to marry divorcees or Jewish paraplegics wanting blessings for a nurse. Your examples are very particular while gay marriage has a potentially much wider application (hence the tax panic?)

Does it bother you that mainstream people who are not satisfied with "a sort of ceremony" will hightail it to a more congenial shul where they'll get a ceremony that publicly recognises their union in exactly the same way as a heterosexual marriage?

 
At 7:16 PM , Blogger Rabbi Jeremy Rosen said...

dk:
I'm all for choice and have no problem where individuals choose to hightail it. But I personally would have to decline. 

 
At 7:19 PM , Anonymous Shoshi said...

Anyway, two women are not eligible for kiddushin, regardless of musical taste (or sexual orientation, for that matter!).

 
At 8:43 PM , Anonymous dk said...

I've just read all this, http://forward.com/articles/157422/conservatives-skip-kiddushin-in-gay-rite/ so I'm now a bit more up to speed on this topic. One of the comments suggests that these three rabbis have capitalised on people's ignorance of what's been left out.

I thought kiddushin meant sanctification. If that's right, then I see what you (ss) mean, women are never going to be in line for that. But it's interesting how no sooner does one touch on one variety of discrimination, (gay people not being allowed to marry) than the hoary old problem of how Judaism treats all women reappears. It's also interesting that while I suppose some heterosexual women and presumably at least some men, have not much liked the idea of men acquiring a wife, it takes a gay marriage debate for this to resurface.

The Archers I meant is a long running BBC Radio 4 soap-opera set in an agricultural community. It is an example of highly conventional taste, as opposed say to having a Twitter account and following Matisyahu. I was making a serious point, that the majority of UK Jewry is conventional rather than radical and gay people who find they are not welcome in the communities they grew up in will leave for other, more liberal ones, or leave altogether. I think Jews leaving Judaism should be a matter of concern generally but in particular, it matters when the mainstream, somewhat staid, mostly tolerant, irritatingly compliant, community minded, responsible citizen varieties are turned away. Unless of course, those scenes of frenzied foaming at the mouth about 'shmutz' at the internet asifa, are ones we want repeated more regularly.

 
At 12:47 PM , Anonymous Shoshi said...

dk:
In this context, kiddushin refers to the first of two stages of a Jewish wedding ceremony. It is often translated as "betrothal". As Jeremy pointed out, certain combinations of people are not eligible for marriage under Jewish law, such as:

Cohen and divorcee
Cohen and convert
Mamzer and Jew (who is not a Mamzer)
Jew and Gentile
Two Gentiles
Man and his sister
Two men
Two women
Two men and a woman

So I wasn't trying to imply that Judaism treats women poorly by saying that two women are not eligible for kiddushin. Sorry for the confusion!

 
At 12:51 PM , Anonymous Shoshi said...

PS - Sorry I didn't get your reference to The Archers! Obviously I thought it was a conventional musical act!

 
At 6:59 PM , Anonymous dk said...

Shoshi,

Thanks for your answer. I wasn't trying to put words into your mouth. I don't know what you think about the status of women in Judaism. In my opinion, Judaism repeatedly gives women a shoddy deal and the debate about marriage, from a gay perspective, brings it to the fore. But I think the same about any topic related to how we treat people in general. Who cares what the rules are for the Edomites, so the Edomites hardly get a mention but women will keep popping up with an inevitability that being 50% of the population is bound to confer.

For people who this matters to in more than theoretical ways, citing legal passages or stating non objection to people making their own arrangements to deal with a religion that refuses to deal with them, must be very scant comfort.

 
At 5:55 PM , Anonymous Anonymous said...

A civil union already provides (or should provide) all the civil, legal and fiscal rights afforded by marriage. Only religious rights are omitted. This seems reasonable because marriage itself is a religious sacrament. Asking the Church to marry a gay couple is like going into a kosher restaurant and insisting on being served pork. As and when the (or any) church denomination decides that it wishes to re-interpret its attitudes and allow gay marriage, then gay couples can join that church and get married there. Simples.

 
At 6:12 PM , Blogger Rabbi Jeremy Rosen said...

Anon:
Indeed.
J

 
At 9:24 AM , Anonymous dk said...

Asking that orthodox Judaism formulate a different response from the current one towards GBLT Jews is not the same as "going into a kosher restaurant and insisting on being served pork".

The kosher restaurant;

1) does not issue proclamations in opposition to anyone who chooses to eat elsewhere, as though this had some bearing on either the kosher restaurant menu, the kosher restaurant clients, or those who have decided to go somewhere else.

2) does not state its support of anyone who chooses to eat elsewhere, as though recognising the right to go and eat a bacon sandwich somewhere else entirely, constitutes some kind of imaginative, ethical advance.

3) does not run its business by remarking on the existence, the popularity, or the menu options of another business, it gets on with running its own.

The kosher business also does not purport to offer an ethical system to live by and assert that this ethical system engenders morally superior behaviour in its adherents. It does not claim to hear the cry of the other, to advocate kindness to strangers because we were once strangers, to be mindful of the preservation of human dignity, or to be a life affirming religion, and at the same time, respond to GBLT Jews (as fully cognisant of the sanctity of marriage as anyone else) with nothing but legal statements.

For anyone observant, and reading this in England, I hope at least your shoes are waterproof. When you walk to shul this evening and tomorrow morning, you may get a bit wet in this very rainy June weather while you won't have an umbrella because of the prohibition against using an umbrella on shabbat. I hope its all quite clear, exactly where using transport or umbrellas fit into acceptable shabbos behaviour because if there's any doubt, any confusion at all over getting the car out and perhaps parking it around the corner, or using an umbrella when the heavens open, on the grounds that the rabbi won't find out, or that everyone else is doing it, or that Judaism is a flexible and pragmatic religion that changes with the times, then sort out some of these modifications before moving onto the apparently 'simple' matter of GBLT Jews.

 
At 2:48 PM , Blogger Rabbi Jeremy Rosen said...

dk:

No of course its not exactly the same. The point simply is that in our modern societies we do not interfere with each others religious or non religious choices. We can choose to be boiund or not by religious strictures. But we HAVE to obey civil ones.

The issue of what religions' moral obligations are is another one altogether.
It is not so easy to simply say that religion is a moral system or a system of faith. It is every bit as much a social system as well as a form of cultural identification. I did not have space to go into the issue of whrether religions need to change their attitudes. I was merely saying that what they do is different and more specific than society's more generalized and of necessit in multi societies, libertarian attitudes.

Jeremy

 
At 4:05 PM , Anonymous dk said...

"It is every bit as much a social system as well as a form of cultural identification".

When secular people argue that, the religious lobby pour scorn on the bagel eaters and klezmer fans because they disagree with the 'every bit' element. If we continue on this route, I think it leads to 'who is a Jew' and what constitutes 'klal', because all communities claim to be representative of, and welcoming towards, all Jews, while at the same time, having very particular notions of who they intend to address. Are you saying that in your view, the social system and cultural identification of Judaism does not include non heterosexual people? If you are saying that, how does that differ from the ultra religious group at the asifa who aside from their religious affiliation, comprised only men, while holding themselves out to be speaking for 'all'?

I know your blog post is on the organisational framework of religions versus secular systems rather than on the merits of either. I didn't comment on that because my engagement is limited to being an external observer of a squabble about power. The only thing that matters, in this context, is whether the much vaunted virtues of Judaism actually amount to anything when gay marriage is considered. From a political point of view, while orthodoxy holds out and refuses to adapt, it will become increasingly doctrinaire by marginalising liberal voices. It is in your political interests to work out how to welcome the two lesbians knocking at your door for a marriage ceremony because if you don't or can't, you will be subsumed within the Charedim who will dictate to you exactly what sort of social system and cultural identification they expect.

 
At 11:01 AM , Blogger Rabbi Jeremy Rosen said...

dk:

No system, in my view, is monochramtic.

There is indeed a tension between the constitutional, legal aspect of religion with its laws and limits and on the other hand the inclusive, emotional, lets even call it humane.

I believe the Bible itentinally gives us different paradigms. On the one hand you have priests with their rigid laws routines and exclusions and on the other you have the prophets and the mystics reaching out to the masses concerned with spirit as much as law.

Similarly the Talmud in Taanit contrasts the popular inclusive miracle worker Choni, with the more formal and legalistic head of the Judiciary Shimon Ben Shetach.
I think there is constant and creatie tension between the two. And always has been.

Whereas Jewish law is developed through the consesus of authorities and moves slowly and usually restrictively I am not in a position to change or modify Jewish Law.

But I can, as a pastoral and spirtual teacher, make things easier for those who do not fit in or find themselves excluded.

So with homosexuality, I cannot say Torah approves any more than it approves of people choosing to remain childless or single. You do not need to prosecute or exclude exceptions. But I do feel religious leaders should go out of their way to be inclusive, sympathetic and non judgmental.

J

 
At 5:52 AM , Anonymous Anonymous said...

I don't think that there is much to add regarding my comment on requesting pork in kosher restaurants, which has not now been said.
I do take issue with the point made by dk about squabbles for power. I do agree to an extent, but I would say it is more about legitimacy. But legitimacy is quintessentially in the eye of the beholder and whilst community leaders (to varying extents, but that is still their choice) can and should decide what is appropriate in their community, this does not make them right or wrong. They may all be right (sic). But G-d's approval is personal and it is also a personal decision as to what rules we abide by. I go to a Reform shul and we have a car park and umbrella stands. This does not make me less Jewish (in my eyes at the very least!)and at least I go to shul, unlike many sticklers for orthodoxy (with a small o).
My issue is with those who insist that their community keep the laws of Kashrut but eat pork themselves in restaurants or even at home! Simplistically one might call it hypocrisy - and many do, but I know different from experience over the years. This is why we have so many accountants, lawyers and scientists. We know how to dive into the rulebook (even mother nature's rules) and come up with new ways to make them work. Nonetheless I note that the breadth of opinion as to personal observance WITHIN communities is so much wider than the breadth of opinion BETWEEN (Jewish) communities. That is a logical vacuum. And we all know nature abhors a vacuum.

 
At 2:14 AM , Anonymous Anonymous said...

This is really a nice and interesting post! Thanks for sharing this one.

 

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