Judaism and Same-Sex Marriage

While voting to keep intact the marriages of approximately 18,000 Californians, including many Jewish couples, the California Supreme Court voted today to uphold Proposition 8, an initiative that amended California’s Constitution to ban same-sex marriage.  Another chapter in the longer story of same-gender marriage in California has ended, and yet another is already beginning.  Here in Los Angeles County, demonstrations against the ban are already underway in Leimert Park and more are planned for East Los Angeles and West Hollywood.  Activists on both sides of the issue are mobilizing in anticipation of another ballot initiative in 2010 or 2012.

Meanwhile, the broader discussion will continue.  To get an early start, let’s examine just one of the charges made by those who oppose equal rights to civil marriage for same-gender couples: Such marriages would “change the traditional definition of marriage.” Well, chevrah, we of Judaism’s Reform movement have lived, for generations now, with an earth shattering “change to the traditional definition of marriage,”—only our world hasn’t shattered yet. Despite the staggering shocks that today’s economy has dealt to most of us, Reform Judaism remains the United States’ largest Jewish denomination. Reform Jews continue to marry and to create families and new Jewish generations.

What is it that we’ve done?  Effectively and ritually, Reform Judaism has transformed marriage from a kinyan (an acquisition) to a brit (contract). For years, Reform Jewish marriage has not been the transfer of a bride from her father’s stewardship to her husband’s. It is a contract between two Jews who are absolutely equal in their right to give themselves to each other. For such Jews, the kiddushin (sanctity) in marriage is not about setting a woman aside for one man only, but rather in setting aside a couple for each other. For Reform Jews, says Eric Yoffie, president of the Union for Reform Judaism, “sanctity only exists in the context of equality.”

Sanctity. Not license, not ‘anything goes,’ but a deep, moral sense that each competent adult Jew has equal status—and that only her Creator can trump a human being’s ownership of her own person. Judaism’s understanding of human dignity is very old—the first thing we learn about ourselves in the TANAKH is that the human was created in the image of God. However, our association of this understanding with bone-deep moral outrage at the idea of human chattel is pretty new. In the days of our country’s Civil War, both Reform Rabbi David Einhorn and Conservative Rabbi Sabato Morais were hounded by their respective communities for their staunch opposition to human slavery—an institution that our Rabbis mitigated but did not condemn unequivocally. This horror of enslavement and fierceness for equal rights under the law is part of the heritage of modernity that Reform Jews have embraced—as an expression of the commandment to love one’s neighbor as oneself.

As Rabbi Denise Eger, newly installed president of the Board of Rabbis of Southern California said when asked if lesbian or gay marriages are l’daat Moshe (according to the Law of Moses), “What is daat? Tradition. Since the 1820’s, Reform Judaism has been developing Jewish tradition to include mutuality and equality.”

This emphasis on equality may be expressed in ketubot that depart from the traditional assignment of different roles in the marriage based on gender. Some Reform Jews, who marry under a chuppah, sign innovative ketubot that commit them to mutual responsibilities. Others make a brit ahuvim, a partnership pact and set of rituals developed by Dr. Rachel Adler for Jews who wish to “acquire a partnership.” Like many Reform Jews who find ourselves reaching back across a paradigm shift to an engagement with Jewish law, Adler is concerned that such concepts as holiness and separation have not been sufficiently explored in a Reform context and wants to be very deliberate about the meanings behind the rituals we perform.

Conservative Rabbi Elliot Dorff, a professor at the American Jewish University and leader in Jews For Marriage Equality points out that, long before the issue of lesbian and gay marriage arose, there have been Jews who have not recognized Reform marriages anyway—let alone marriages performed by secular authorities. Dorff reminds us that, “Rabbi Isaac Klein, of blessed memory, long ago wrote a responsum that was approved by the CJLS [The Committee on Jewish Law and Standards] that states that although Jews should get married with chuppah and kiddushin, if they got married through civil law alone, retroactively that is considered a marriage, and the couple would need a get to dissolve their marriage in Jewish law. Rabbi Klein reasoned that is even more evidence than their sexual intercourse that they intended to be considered as married.”

In other words, for traditional Jews, marriage “through civil law alone,” along with Reform marriage, has been considered to be the same as shacking up. Traditional congregations only recognize such marriages if they are between Jews who are permitted to one another, as having been effected through intercourse. Furthermore, even though civil law permits, say, the former Mrs. Schwartz to marry Mr. Cohen at City Hall—and they could marry in a Reform congregation—no Orthodox synagogue has ever been made to perform such a ceremony or to recognize the resulting marriage.

It’s just wrong to claim that civil marriage equality would force changes on religious institutions. No rabbi has ever been forced by civil law to conduct a marriage between a divorcée and a Kohen, just as the availability of non-Kosher food in the general marketplace doesn’t force cheeseburger onto anybody’s plate.

Robin Podolsky is a writer and former press secretary to State Senator Sheila Kuehl