Tuesday, December 18, 2012

"Same Sex Marriage in America: What Does Orthodox Judaism Say?" by RABBI SHMUEL HERZFELD (Ohev Sholom D.C.)

12/15/12 The holiday of Chanukah is a holiday that celebrates the triumph of our holy ancestors over religious persecution.  In 167/66 B.C.E. Antiochus IV Epiphanies initiated a series of horrible religious persecutions.

These persecutions included:
1) A rescinding of the rights of extensive religious freedom that were enacted by Antiochus III.
2) In December of 167 foreign idols were brought into the Beit Hamikdash (The Holy Temple).
3) Shabbat and Festivals were not permitted to be observed.
4) Altars were built so that unclean animals could be offered upon them in violation of Jewish law.
5) Circumcision was outlawed.
6) Dietary laws were outlawed.
7) Torah scrolls were burned.
Anyone who disobeyed these laws was punished with execution.  (See the article by Lawrence Schiffman in YU To Go, 5773, 44.)
This idea that Chanukah is primarily a festival that celebrates the triumph of our ancestors over religious persecution has actual relevance in Jewish law.  The classic code of Jewish Law, the Shulchan Aruch, records that the days of Chanukah were not established for mishteh ve-simcha, for parties and celebration (670:2).  The Mishnah Berurah explains that there is a crucial difference between Chanukah when we are not legally required to have a festive meal and the holiday of Purim, when we are required to do so:
For on Purim there was a decree to destroy and kill our bodies, which is in effect the nullification of drinking and happiness, but not our souls.  For on Purim even if we changed our religion they still would have killed us.  Thus, when God saved us on Purim they established the practice of praising God through the physical celebration of our bodies by drinking and celebrating.  This is not the case with respect to Antiochus.  For Antiochus did not desire to kill them.  He only persecuted them in order to cause them to change their religion.  As it states, "to cause them to forget Your Torah, and to bring them away from Your laws."  And if the Jews had changed their religious ways then Antiochus would have accepted them....  For this reason these days were established only as days of praise and gratitude to God and not as days of physical celebration.  (Mishnah Berurah 670:6)
For our rabbis the message of Chanukah was always a message of religious persecution and the right for religious freedom.  The rabbis chose to emphasize the miracle of the oil because it represents the religious element of the revolt: the right to light a pure candle in the Beit Hamikdash.
The message of Chanukah that we should focus on in our own lives today is this idea of religious persecution.  The same way in which our ancestors stood up against religious persecution, we too, must stand up for those who are persecuted in the name of religion. Because of our ancestors in the time of Antiochus, because of our ancestors who faced so many persecutions in Jewish history, we too have a responsibility to speak out against persecution in the name of religion. 
While this is true of all Jews it is especially true of Jews in America.
 
In America we Jews have been the great beneficiaries of those who have spoken out against persecution.
One of the greatest Chanukah stories of all time is the story of what happened in Billings, Montana in 1993.
Here is an editorial from the Billings Gazette in December of 1993:
"On December 2, 1993, someone twisted by hate threw a brick through the window of the home of one of our neighbors: a Jewish family who chose to celebrate the holiday season by displaying a symbol of faith-a menorah-for all to see. Today, members of religious faiths throughout Billings are joining together to ask residents to display the menorah as a symbol of something else: our determination to live together in harmony, and our dedication to the principle of religious liberty embodied in the First Amendment to the Constitution of the United States of America. We urge all citizens to share in this message by displaying this menorah on a door or a window from now until Christmas. Let all the world know that the national hatred of a few cannot destroy what all of us in Billings, and in America, have worked together so long to build."
That year nearly every window in Billings, Montana had a paper Menorah. 
In Montana, we Jews were once again the beneficiaries of brave and kind people who stood up and spoke out against twisted persecution.
This Chanukah I want to share my views on homosexuality and same sex marriage -- an area that I believe relates to the concern I have about religious persecution.
Some of what I have to say below is just my opinion about a policy matter.  Of course, you are welcome to disagree with my opinion.  The reason why I feel it is important to share my opinion in this matter is because there are voices in the Orthodox Jewish community that have taken a loud and aggressive position on this issue and I want to clarify where my view is distinct from theirs.  Second, even though it is only my opinion about a policy matter, I believe that it is an opinion that comes from a sensitivity to certain matters that are very much related to Judaism.
Recently a highly respected Rosh Yeshiva wrote an influential article that I strongly disagree with. (http://haravaharonfeldmanarticle.weebly.com/)
He stated that there is no difference between an active homosexual and a child molester!  To be sure, his view is more nuanced than that.  But that is the language he used and his language is extremely dangerous.  How do you think someone whose child or friend says that they are gay is going to respond to that?  They may now view them as one would view a child molester!
This Rosh Yeshiva also writes that the active homosexual is required to give up his life rather than commit the homosexual act.  How do you think someone who is gay is going to read that?  It may very well drive frum gay Jews into committing suicide.  Chas Veshalom!  God forbid!
This Rosh Yeshiva also advocates excluding Gay Jews from the Jewish community by not giving them honors in synagogue. 
These views may very well lead to persecution of Gay people and I feel the need to respond to this Rosh Yeshiva because he is not a Hareidi rabbi whose students we will never meet, but a respected, local rabbi whose students teach in our schools and live in our community.
Let me be clear about my own position.  I think that same sex marriage in the American secular legal system should be legal. I don't wish to impose Jewish law on American society.
At the same time, I believe that the Torah prohibits homosexual conduct and that the only possibility for a Gay lifestyle in accordance with Jewish law is for the Gay person to practice abstinence.  Nor can the union of two people of the same gender be considered a kiddushin (sacred betrothal) under Jewish law that is comparable to the mitzvah of marriage.  I would not officiate at a Gay marriage since the Torah prohibits it nor can a Gay Marriage be allowed to take place in our shul, which must obey Orthodox interpretation of Jewish law. 
And yet, I believe (as I have spelled out in detail in my book Fifty-Four Pickup) that the Torah's prohibition on homosexual conduct is a chok (law without a reason), a prohibition whose violation should not carry our moral outrage or moral disapproval.  It is prohibited.  But civil Gay marriage is no more of a moral outrage than a Jew who decides to wear a garment made of wool and linen.
In Fifty-Four Pickup I spell out the reasons why I think it is not a moral sin, but a chok.  I don't wish to go into all those reasons here, but I would only add that I am by no means the first one to suggest that the prohibition against a homosexual act is a chok.  Rabbi Aaron Lichtenstein recently gave an interview where he suggested that there are great rabbinic authorities who think it is a chok, even while there are other authorities who do not consider it a chok.  (This article was referred to me by Leon Furchtgott: http://pagesoffaith.wordpress.com/2012/12/02/perspective-on-homosexuals/). 

The great Ramban says explicitly in his commentary (Leviticus 18:6) on the Torah that the laws of sexual prohibitions (arayot) should be seen as a chok that we must accept upon ourselves as gezeirat hamelekh (a decree of the King).  He writes that any explanation for them is very weak (chalush me-od).  So too, the great R. Yehudah Hechasid wrote that he does not understand why the Torah prohibited a homosexual act.  
When Rabbi Moshe Feinstein was asked about this comment of R. Yehudah Hechasid, he said it is not possible that Rabbi Yehudah Hechasid would say such a thing, therefore the whole work must be a forgery. (Iggros Moshe, Yoreh Deah 3:115.)  
But Dr. Haim Soloveitchik, the world expert on medieval Jewish history, assured me that that R. Yehudah Hechasid did say that and that the overwhelming manuscript evidence proves that it is certainly not a forgery.  These two medieval figures, Ramban and Rabbi Yehudah Hechasid are not tertiary figures to Jewish history, but leading authorities who we lean upon for direction on a daily basis.
In general I am proud that our synagogue is a member of a synagogue body known as the Orthodox Union. 
The Orthodox Union (OU) has taken a vocal position on this issue that I disagree with.  They write on their website that they are against America legally recognizing same sex marriage.  They urged everyone to vote "no" to the Gay marriage proposal in the recent elections.
Their website explains their reasoning (in a statement authored by Rabbi Tzvi Hersh Weinreb, former Executive VP of the OU): 
http://advocacy.ou.org/2006/orthodox-response-to-same-sex-marriage/
 
... all religions have the responsibility of educating the public to core values that we believe have universal, as well as particular, religious import. In this connection we ought to consider a Talmudic passage (Chullin 92a) that says that the nations of the world, however sinful, corrupt or perverse, still have the merit of at least three behaviors, one of which is "they do not write a ketubah for males." [A Ketubah is a marriage contract that a man traditionally gives to a woman.]
But here is where I disagree with this statement of the OU.
I don't view homosexuality as "perverse."   And I don't pretend to understand why the Torah prohibits it.  But the fact is that the Torah prohibits the homosexual act.  I totally accept the Torah's laws upon myself.  Whatever the Torah says we Jews must follow.  But I view it as a chok, a prohibition that we don't understand the reason for. 
We should no more try to influence the way society views gay marriage than we should try to influence the way the secular society views other marriages which are also prohibited by Jewish law like, for example, the marriage of a Kohen to a convert, or of a Kohen to a divorced woman, or for that matter, the marriage of a Jew to a Gentile. 
We Jews would be very upset if the Roman Catholic teaching about divorce became the law of the land.  We would be upset if the Catholic understanding of divorce became a universal value in America.  Similarly, we should not be interested in the Torah's prohibition of the homosexual act becoming the law of the land as well, just like we should not be interested in the law of the land being a prohibition on Jews marrying Gentiles. 
Some of you might be thinking, why should America legalize Gay marriage?  Call it something else, just don't call it marriage.
There is a narrow answer to that question and a much broader answer.
First, let me acknowledge that the issue of gay marriage is controversial, and I believe that there are reasonable people of good will on both sides of the argument. For example, Obama in 2011 and Obama in 2012.  The fact that a person is against same-sex marriage doesn't make them a bigot or intolerant.  These are sensitive debates that involve philosophy, ethics, and social science. There are arguments regarding defining marriage as between a man and a woman that don't involve casting a moral judgment on homosexual relations or invoking religious tradition. For example a recent article by Robert George and two students: http://www.harvard-jlpp.com/wp-content/uploads/2011/08/GeorgeFinal.pdf 
Ultimately, I believe that these arguments should be set aside because the risk of persecution of homosexuals is too great. 
A secular society that denies Gay people the right to get married is a secular society that willy-nilly is creating the framework for persecution through an unstated moral attack upon Gay people.  It is a society that is holding on to the idea that Gay people are perverse and Gay people need to be shunned and ostracized.  If the OU website can casually drop the word perverse into its discussion of Gay people, it is allowing for a religious environment that can also promote a devastating theological attack on a Gay person.  One thing our own history has taught us to be super-sensitive too, is that a theological case for persecution is but a short step to an actual, physical persecution.
If it is a question of people being persecuted in America, then the side of religion should always side with the people who may feel the threat of persecution. 
Because who are these Gay people?  They are not the other.  They are not distant.  They are our family.
In parashat Miketz the brothers of Yosefare distraught when their brother Shimon is held as a prisoner in Egypt.   The ransom for Shimon is the appearance of their other brother, Binyamin.
Yaakov does not want to send Binyamin down to Egypt.  Yaakov says, Shimon is in jail and Yosef is lost.  I don't want to lose Binyamin as well.
Then Yehudah, the father of the future Mashiach, says the words that qualify him to be the savior and leader of our people.  He says: "Anokhi e-ervenu (Genesis 43:9), I will bear responsibility."  I am responsible for Shimon.  I am responsible for Binyamin.
I know the folks of our congregation.  I know that when we speak about persecution of Gay folks we are not speaking about the persecution of a distant other.  It is the persecution of our friends, of our brothers and sisters -- literally, of our sons and daughters, and of our parents. 
Whose job is it to raise a voice against the persecution of our own family?  The holiday of Chanukah teaches us that it is our job: Each of us must say, 'Anokhi e-ervenu, I will bear responsibility.'
To reiterate: The Torah prohibits homosexuality for reasons I do not understand.  I totally follow the Torah even when I don't understand its reasoning.  But as Orthodox Jews we should not seek to impose our own religious prohibitions on the secular society. 
Two weeks ago we had some Gay Jews who spent a Shabbat in our shul.  One of these Jews told me that when the synagogue he was in found out his story he was told not to come back again.  Another person from this group told me that the President of his synagogue publically ridiculed him by making a crude sexual joke about him in front of everyone at the shul Kiddush.  Our history teaches us that the humiliation that our brothers experienced is but a short step to actual acts of violence.
We must actively work to protect our Gay brothers and sisters from being shunned, ostracized, and dehumanized.  We must embrace the Gay community, pray with them and sing with them, and together light the flame for freedom in the land.

Original link can be found: http://www.ostns.org/Recent_Dvar_Torah.php

Rabbi Shmuel Herzfeld is also the author of:  Fifty-Four Pick Up: Fifteen Minute Inspirational Torah Lessons

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