Saturday, June 1, 2013

"A Suggestion for Orthodox Jewish Political Activists Regarding Same Sex Marriage" by Rabbi Eliyahu Fink

6/7/12- The OU, RCA, and Agudath Israel of America have recently issued public statements expressing their dismay as the movement to grant same sex couples marriage rights gains momentum. Similarly, the OU and Agudath Israel of America issued a statement expressing their displeasure with the now famous contraceptive mandate in Obamacare.
While the two statements are similar, they are also very different. The Torah prohibits a specific kind of male on male lovemaking. The Torah does not recognize, or even provide a mechanism for two men or two women to wed in a religious ceremony. Legalizing same sex marriage is seen as an affront to these values. However, the Torah does not prohibit contraception. Yet, the orthodox Jewish organizations rallied together to support the Catholic Church which does prohibit contraceptive use for its membership.
The most reasonable explanation for these statements is that the orthodox Jewish organizations fear that if legislation is passed that is not consistent with the values of orthodox Judaism, those who practice orthodox Judaism could be subject to discrimination lawsuits. This explains their support of the Catholic Church in the battle over birth control. Although the issue does not affect orthodox Jews per se, it does have a collateral effect in that it could set dangerous precedent for governmental interference with religious practices and beliefs which could give rise to discrimination claims against orthodox Jews.
(That is, I dismiss any and all arguments that these laws are actually a specific risk for orthodox Jews or the spiritual health of the nation.)
As farfetched as this may sound, the Court of Appeals in New Mexico just ruled on a case of similar concern. A gay couple called a photographer to do their wedding. They told the photog that the wedding was between two men. The photog responded that she doesn’t do “non-traditional weddings”. They meet a few times anyway. The couple didn’t use the photog, obviously. They sued the photog under a New Mexico statute that bans any “public accommodation” from discriminating based on race, religion, sexual orientation, etc.
The reasoning of the gay couple plaintiffs was that they were being discriminated against by a business operating in public and this violated the statute. The court ruled in their favor and the court of appeals affirmed the lower court’s ruling.
This sounds really, really scary for orthodox Jews.
Let me walk you off the ledge.
First of all, this is a very strange ruling. Using this interpretation of the statute, anything can be considered a public accommodation. Certainly City Hall is a public accommodation and in New Mexico, City Halls won’t give marriage licenses to gay couples! (Now City Hall is has immunity, but you get the idea – this is kind of a crazy ruling.) It is very likely that this ruling with reversed on appeal on this issue.
Second of all, it’s hard to see how this is true discrimination. There are plenty of photographers in New Mexico who would have loved to have the business. It’s not as if the couple had no options because of this photographer’s unwillingness to photograph a ceremony not recognized by their own state. Wouldn’t the gay couple want to reward and support photographers who endorse and approve their beliefs and choices?! Of course they would. So just hire one of those photogs. Problem avoided. If they can demonstrate that there is a conspiracy amongst photographers to withhold doing business with gay couples, it would be a much stronger case of discrimination.
Third of all, the photographer could have given a million different reasons for not taking the job. She could have said she is going on vacation or that she isn’t interested in working at that location or that she might not feel good that day or thats she has a funeral. Whatever. The point is that the only way a suit like this is possible, is in the precise situation at hand. That is, the defendant expressly says “I am not doing the job because you are gay”. It shouldn’t be too hard to avoid this in the future. So even if the Court of Appeals ruling stands, it has limited utility.
What’s the lesson? The lesson is that this anti-discrimintory statute in New Mexico is vague and broad and may cause unfair results. But more importantly, states are writing these statutes. Instead of making general statements of disapproval that sound awfully like we are trying to impose our religion’s morality on America, an idea many orthodox Jews find abhorrent, it would be wiser to try and influence or impact future legislation to make sure this doesn’t happen in the future.
Gay marriage is already legal in New York and it will be legal everywhere eventually. Religious activists should engage in the legislative process to make sure that orthodox Jewish vendors and institutions are protected. Let’s spend our time and efforts on what will make the difference for our community. Let’s not waste time and energy fighting a losing battle. Same sex marriage is here to stay. There is no true sanctity of marriage in America. There might be sanctity of marriage within some religious groups, but that is not relevant to the issue at hand. Too many civil rights are attached to marriage to deny same sex couples those same opportunities without invoking religious beliefs. And as I am sure you know, one cannot use religious beliefs as the only basis for a law. So same sex marriage is going to happen everywhere. Let’s prepare ourselves for that reality by making certain that the statutes clearly allow for religious people to be able to choose with whom they do business so long as there are viable, vibrant options for the same sex couple.
But in the end, wouldn’t it be better if religious vendors were able to set aside their personal beliefs for the sake of civility and friendship? I mean, there is no prohibition that I am aware of in orthodox Judaism that would prevent a photographer from working a gay wedding. There is no problem for a tailor to hem a gown or cuff some pants for a gay wedding either. So I guess what I am saying is that while I respect religious beliefs very much, I don’t believe that one’s religious beliefs are sufficient cause to discriminate. To be clear, I am not talking about a member of the clergy performing a ceremony that does not even exist in his or her religion. I am referring to vendors who are uncomfortable working a gay ceremony. There is a difference. I don’t think anyone would expect a member of the clergy be required to perform a nonexistent ceremony. But there is no direct parallel to religious vendors.
It would make me much happier to see people find the good in others and respect their choices, than to use their beliefs as a tool for division. It would save a lot of time and grief as well.
So my suggestion to orthodox Jewish political activists is twofold. One, get involved in legislation to make sure our interests are protected and stop with the anti-gay platitudes. Two, encourage orthodox Jewish to consider setting aside their religious preferences for the sake of peace and maybe even kiddush Hashem (honestly, I am not sure about this one. But eivah certainly applies).
Hopefully, these ideas can bring us to a better future for all Americans. The religious, the gay, and the gay religious. All of us.
Links: Volokh Conspiracy 1 and 2,

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