Essay is comprised of 7 sections: 1)Who American Jews Are?, 2) Same-Sex Marriage and Judaism, 3) What is Jewish Marriage? 4) According to the law of Moses and Israel, 5) Jewish Marriage vs. Christian Marriage, 6) Jews and the Modern Marriage Crisis, and 7) The Jewish Struggle to exist.
When your forefathers went down into Egypt they were only seventy strong, but now the Lord your God has made you countless as the stars in the sky. (Deuteronomy 10:22)
In the mid-20th century, the American Jewish community distinguished itself for the zeal of its commitment to the cause of civil rights. Recently, American Jews have been no less zealous in behalf of another cause that many have likened to its predecessor. This is the movement to advocate, create, and legalize the institution of gay marriage.
Is that a surprise? That American Jews as individuals strongly support gay marriage should come as news to no one. What may be surprising is how much more avidly they support it than do non-Jewish Americans of the same socio-economic profile: educated, affluent, politically liberal. In 2010, the last time the Pew Research Center broke out separate opinion numbers for Jews, over three-quarters supported gay marriage, scoring eight points higher on this issue than liberals in general and 27 points higher than white mainline Protestants. Only the small group of avowed atheists believe more devoutly in gay marriage than do Jews. In a related datum, American Jewish attitudes toward homosexuality itself have long tracked markedly more positive than the attitudes of Americans in general.
Even measured against the standard of other Jewish enthusiasms, gay marriage is remarkable. In 2008, more of California’s Jews voted against Proposition 8, an anti-gay-marriage amendment, than voted for Barack Obama, who happened to be running for President on the same day. As early as 2000, the Reform movement, the largest Jewish religious denomination, authorized its rabbis, at their discretion, to “officiate at same-sex unions [of gay Jewish couples] through appropriate Jewish ritual.” The Conservative movement, the second largest denomination, has followed suit and in some respects, as we shall see, gone farther.
That an American Jew of any denomination, or of none, is significantly more likely to approve of gay marriage than are American liberals in general raises the question of whether there might be something peculiarly Jewish propelling this disposition: some element in American Jewish culture, or in the Jewish religious tradition, or in the Jewish soul or genotype.
In what follows I’m going to suggest briefly that the answer lies in the culture, broadly speaking, of American Jews—and, more extensively, I’ll argue that it does not lie in the Jewish religious tradition; in fact, quite to the contrary. Along the way, I’ll try to show how the definition and the aims of Jewish marriage are in some ways similar but also, in essential ways, decisively dissimilar to other definitions of marriage, especially Christian marriage and the conventional Western notions of marriage that have been informed by Christian ideals. I’ll also maintain that the contemporary extending of Jewish marriage to gay Jews by the non-Orthodox American denominations not only nullifies the meaning of the institution but strikes at the heart of Judaism and Jewish peoplehood.
In all this, I am painfully aware that neither our times, nor the large majority of my fellow American Jews, are with me.
1. WHO AMERICAN JEWS ARE
A smallish percentage of American Jews have incomes no higher than the U.S. average, have never studied at a university, and in politics tend to think and act conservatively (and locally). Many of these Jews are ultra-Orthodox, strict and often cloistered observers of Jewish religious law; although in absolute terms their numbers are growing, they remain a decided minority.
The majority of American Jews, as I have already indicated, are affluent and highly educated, and their politics are liberal. Indeed, their liberalism determines more than their politics or their voting habits. It informs their attitudes on most social and economic issues, their positions on moral and religious questions, their ideas of family and community—and, critically, their self-image as Jews.
So much has been written about the history, the characteristics, and the by now ingrained nature of Jewish liberalism that little need be added here. Suffice it to say that for many if not most American Jews, there is nothing accidental in their support both of the black civil-rights movement in the 1960s and of gay marriage today: two causes that they and their spokesmen often link together as related episodes in the battle against discrimination and prejudice. In both instances, their sentiments are in tune with the modern liberal values of tolerance, acceptance, and a bias in favor of equality—or, in today’s more therapeutic and moralizing terminology, the values of compassion, caring, and sensitivity.
To this we may add a demographic fact. By and large, American Jews tend to live in metropolitan areas that are themselves bastions of elite liberal opinion—and that also, not coincidentally, attract significant numbers of educated and high-achieving gays. This alone may suggest the likelihood that many Jews, and perhaps especially those in the worlds of fashion, communication, and the arts, will be close friends or on friendly terms with similarly situated gays and indeed likelier to have such friends than to be acquainted with a semi-skilled or unskilled manufacturing worker or a person of any race who is a member of the Tea Party or has deer-hunting tags.
We may take it as a rule that it would be most unusual for someone with gay friends, colleagues, or relatives to remain opposed to legalizing gay marriage, and quite normal for that same person to support it wholeheartedly.
2. SAME-SEX MARRIAGE AND JUDAISM
What does any of this have to do with Judaism? Most Jews, after all, support gay marriage for reasons that have nothing to do with religion, their own or anyone else’s. And yet some Jews, including some of the most vocal ones, also identify their secular liberal values with the teachings of Judaism itself, or at least with their interpretation of those teachings.
This is especially so with respect to the non-Orthodox—that is, the Reform and Conservative—branches of the Jewish religious world, which together, as suggested earlier, not only constitute the largest body of religiously affiliated Jews but also have gone out of their way to accommodate gay Jewish couples desirous of being married under their auspices. The only outlier in the constellation is the Orthodox movement, numerically the smallest of the three; although it, too, wrestles with the issues presented by gay rights (and gay rabbis), most of its authorities continue to insist that neither homosexual practices nor gay marriage can be reconciled with Jewish religious law as enunciated in Scripture and elaborated in the rabbinic legal tradition (halakhah).
On what, then, do the spokesmen for the non-Orthodox movements base their own favorable disposition toward gay marriage as a religiously sanctioned institution, and how did they overcome the seemingly immovable obstacles presented to it in Jewish sources?
It might seem that the obvious place to start is the most notorious place of all, namely, the biblical condemnation of homosexual behavior in Leviticus 18:22: “You shall not lie with a man as with a woman; it is an abomination.” But there is reason not to start there: together with the other, surrounding prohibitions of incest and adultery in chapter 18 of Leviticus, this verse became among the least particularistic of biblical injunctions, having been enthusiastically embraced by Christianity and Islam and amplified and intensified by them beyond its salience among the other Levitical prohibitions dictated by God to Moses.
I will come back to those prohibitions, and to the role they play in the distinctively Jewish conception of marriage. For the time being, though, it is enough to acknowledge that Leviticus 18:22 did indeed figure in early deliberations by the non-Orthodox branches over their stance toward homosexuality itself. They dealt with the issue by setting to one side the evidently non-negotiable barrier presented by specific homosexual practices—the plain-sense object, as they saw it, of the biblical command—and focusing instead on the very modern question of a homosexual identity. And this was an easy problem to surmount, because the existence of such a thing as a homosexual identity had long been accepted by the Jewish public, and everyone, including many if not most of the Orthodox, wanted to recognize and to welcome Jews who were gay as fellow Jews.
When it came to the next big step, gay marriage, the task for non-Orthodox rabbis, though difficult, became mainly technical. In the mid-1990s, a committee of the Central Conference of American Rabbis (CCAR), the official rabbinical body of the Reform denomination, hesitated over the blazingly clear non-compatibility of gay relationships of any kind with Jewish marriage as a legal category—kiddushin—sanctioned by Jewish religious tradition. A few years later, however, while still split on the applicability of the term “marriage,” the movement resolved to give its individual rabbis the power to decide whether and how to conduct same-sex “unions” of gay Jews. It had satisfied itself that such unions could “serve as the foundation of stable Jewish families” (the sanction, as it were, of enlightened social science), and this finding, together with the Reform movement’s “long history of support for civil and equal rights for gay and lesbians” (the sanction, as it were, of liberalism), was enough. By 2004, the CCAR would issue a redacted Kiddushin [sic] Service for Same Gender Couples. Adding a therapeutic touch, David Ellenson, the head of the Reform rabbinical seminary, would put the case summarily: the Jewish obligation “to champion an ethic of compassion and empathy . . . can be said to trump a single statement in Leviticus 18:22.”
For the Conservative movement—which, unlike Reform, accepts the authority of halakhah (an acceptance duly tempered by its ready embrace of change)—the engineering feat proved trickier. Accordingly, the process took longer. As a committee of the movement’s Rabbinical Assembly finally reported in 2012, its members had long been alerted to an urgent deficit of dignity experienced by same-sex Jewish couples who were unable to marry under Conservative auspices. In particular, the rabbis’ pastoral concern had been piqued by studies showing that LGBT teenagers committed suicide at a distressingly higher rate than teenagers in general.
Although there is no evidence that the availability of gay marriage would have alleviated this situation for teenagers, or for Jewish teenagers in particular, the degree of emotional suffering suggested by the statistics impelled the rabbis to find within the halakhic literature a means of remediation. Like their Reform counterparts, but in their own preferred terms of discourse, they settled on an “oft-repeated”—and, in truth, oft-debated—talmudic dictum to the effect that “the demand of human dignity . . . supersedes a negative principle of Torah.”
On the grounds of this halakhic principle, the Conservative rabbis, while declining to rule one way or another on the Scriptural prohibition of homoerotic conduct in Leviticus 18:22, made the choice to suspend “rabbinic-level prohibitions” (their emphasis) of same-sex relationships of any kind and create a mechanism that would enable homosexual Jewish couples to “experience intimacy and create families recognized by the Jewish community.” In due course, they also produced an approved wedding ceremony for same-sex couples, released in two separate versions with language specific to male and female pairings, and they pledged themselves to celebrate the new marriages formed by these rituals “with the same sense of holiness and joy as that expressed in heterosexual marriages.”
Looking upon their work, the rabbis found it very good:
These two wedding ceremonies, like the kiddushin ceremony developed in Jewish tradition for heterosexual couples, emphasize values such as faithfulness, compassion, and financial responsibility. They employ traditional symbols of love and marriage, speak to the couple’s commitment to living a life infused with study and devotion, and ask for God’s blessing upon their union. In all of these ways these ceremonies communicate that the family established by the couple has the potential to become a bayit ne’eman b’Yisrael, a faithful household in Israel.
The Conservative ceremonies—generous, linguistically ingenious, and based to the authors’ satisfaction on Jewish legal reasoning—share one peculiarity that the rabbis acknowledge and another, greater one that they do not. The first is their conscious bypassing of the key components of the “kiddushin ceremony developed in Jewish tradition”: the same components that proved temporarily irksome to their Reform colleagues and that make a marriage explicitly and unmistakably Jewish. The second is their non-acknowledgement of everything that makes Jewish marriage itself a sine qua non for the existence of Judaism and of the Jewish people.
3. WHAT IS JEWISH MARRIAGE?
Like every kind of marriage that has ever existed, in every human society we know of, Jewish marriage was established not by the marrying couple, or even with a mind to its benefit, but by something with much greater power and import: the society, the authorities, the cult, or the families to which the couple belonged. But Jewish marriage is also unique, being a communal/religious device whose function is identical with its inner significance as the means of generating a future for both Judaism and the Jewish people.
As the late theologian Eliezer Berkovits writes in his essay “A Jewish Sexual Ethics,” Jewish marriages are ordinary marriages that in addition accept
responsibility for the historic destiny of all Israel. . . . A Jew, who desires to be one, is always a link in the generations, a child who receives and a parent who transmits with the intention and the freely accepted responsibility of furthering through time the bringing-about at the end of time of what God had “spoken of Abraham.”
This, adds Berkovits, is precisely what is meant by the central formula of the kiddushin ceremony: “You are sanctified to me . . . in accordance with the law of Moses and Israel.” Indicatively, in the marriage ceremony devised by the Conservative rabbis, that formula, traditionally understood to encompass the twinned legislation of the Torah (“Moses”) and rabbinic halakhah (“Israel”), does not appear.
One need not accept Berkovits’s eschatological vision to see why Judaism needs Jewish marriage. What makes a Jew a Jew is not purity of race, a particular virtue found in the DNA of every Jew, the utterance of certain forms of words, or the fervency of faith, but the mundane work performed generation after generation by Jews, including converts to Judaism, who marry according to Jewish law and produce Jewish children who, in sufficient numbers, do the same in their turn. In short, Jewish marriage exists because it has a purpose, a telos, for Israel as a people. “Judaism is a process through history,” as Berkovits says, because, in history, Judaism is always lived in the future and with responsibility toward that future: “The biological transmission of life from generation to generation is simultaneously the transmission of the life of Judaism from generation to generation.”
For that reason, too, a special claim is laid upon Jews by the very first words spoken aloud by God in the hearing of mankind—the first of the Bible’s divine injunctions to humanity and the first idea (as opposed to the first sensation) that humans encounter in the earliest moments of their conscious existence: “Be fruitful and increase, fill the earth and subdue it.” (Genesis 1:28)
Indeed, for a couple of thousand years, the non-Jewish world thought that what was most distinctive about the Jews was the teleological dimension with which their religion had endowed sexuality, marriage, and fruitfulness. The Jews thought so themselves. Dramatizing what made Jewish marriage different, the Hellenistic thinker Philo of Alexandria, in the first century C.E., wrote this speech for his imagined biblical Joseph:
We children of the Hebrews follow laws and customs which are especially our own . . . . [B]efore our lawful marriage we know nothing of any connection with any other woman, but, without ever having experienced any similar cohabitation, we approach our virgin brides as pure in themselves, proposing as the end of our marriage not pleasure but the offspring of legitimate children.
Whether Jewish bridegrooms were as virginal as Philo boasts is unverifiable at this distance in time. But it is true that Jews regarded sexual intercourse not as an action to be judged licit, or sinful, or pleasurable in itself but as a means to an end—the creating of a future for Jewry—sanctified and commanded by God. For his part, the Roman historian Tacitus, writing in the first century C.E., complained about this very quality, berating the Jews as a people who for purely ethnic reasons “take thought to increase their numbers, regarding it as a crime to kill any undesired children.” Two centuries later, a Persian Christian celibate joined the adversarial chorus: “I have heard from a Jewish man who insulted one of the brothers of our congregation by saying to him: You are tame’in [impure], you who do not marry; but we are kadishin [holy] and better, [we] who procreate and increase progeny in the world.”
4. “ACCORDING TO THE LAW OF MOSES AND ISRAEL”
It is within this same framework that the laws in Leviticus governing sexual relations and marriage can best be understood. For if marriage in general (in the words of Claude Lévi-Strauss) “is not, never has been, never can be a private affair,” few forms of marriage in literate cultures are as bluntly un-private as the rules inscribed by Moses in chapters 18 and 19 of Leviticus, to which we now return. Here we have a first-hand account of how, for the Israelites, marriage originates as a device not so much to bond the marrying pair to each other as to unite their offspring to the group, the nation of Israel, of which the pair are members.
The Hebrews who received Moses’ instructions were already bound to observe the commandments demanding honor for parents and prohibiting adultery and the coveting of one’s neighbor’s wife—each of these being inscribed on the tablets brought down from Sinai—as well as any number of statutes governing sexual and family behavior. Marriage already existed pre-Leviticus, usually monogamous but, for the rich, also potentially polygamous. Divorce existed: husbands could dissolve marriages. Pre-Leviticus marriage rules created and extended kinship structure and family relationships, noting consequences for children born of illicit sexual intercourse between parents who disobeyed the laws banning adultery and incest.
For the most part, God’s instructions to Moses in Leviticus 18 and 19 do not alter this basic shape. The legal innovations are subtle and easy to miss. They don’t change marriage as a husband or wife would experience it, or lend it more glamor or holiness. They do contribute to making Hebrew marriage Jewish by introducing refinements in the schedule of prohibited partners for sexual intercourse and, thus, for marriage.
The book of Leviticus is conventionally divided into sections on sacrifice, purification, and holiness, the last-named of which contains the marriage law. The warm feeling conveyed to modern sensibilities by the term “holiness” can obscure the fact that God’s law in this instance is explicitly intended to define the identity of an entire people through their systematic production of their own future: “the man who keeps [My institutions and My laws] shall have life through them” (18:5). This may be taken literally: if Israel is to have a continuing life, it will be through acts of creation repeated, in accordance with God’s laws, by Jews in every generation.
In Chapter 18, God’s very first statement about marriage and sexual intercourse makes it clear: this portion of the law is meant to differentiate the Israelites from those living under other national laws or mores:
The Lord spoke to Moses and said, Speak to the Israelites in these words: I am the Lord your God. You shall not do as they do in Egypt where you once dwelt, nor shall you do in the lands of Canaan to which I am bringing you; you shall not conform to their institutions. You must keep my laws and conform to my institutions without fail: I am the Lord your God. (Leviticus 18:1-2)
The new laws do not impose a higher level of virtue or sanctity. God mentions marriage, as opposed to sexual intercourse, only in the final prohibition of the first set of laws (18:18), by forbidding the addition to a polygamous marriage of an existing wife’s sister.
This, however, is preceded by a remarkable condemnation of sexual intercourse with a purely notional blood relation (18:17): “You shall not have intercourse with both a woman and her daughter, nor shall you take her son’s daughter or her daughter’s daughter to have intercourse with them: they are her blood relations, and such conduct is lewdness.” The immense power of the Jewish teleological conception of sexual intercourse displays itself here, in the prohibition of what a French anthropologist has dubbed “incest of the second type.” That single act creates, ex nihilo, a family, consisting of the man, his female sexual partner, and her female blood relations. What Leviticus 18:17 thus underlines, even more strongly than do its neighboring verses, is that sexual intercourse has consequences not only for the two participating parties but for the nation as a whole.
Once the properly instructed Hebrews will enter the land and become Israelites, it will be up to them to police the borders and enforce the laws that will then apply both to them and to non-Jewish residents. By historical standards or even by modern standards, those laws are fairly mild and hardly exotic or recherché.
But the Lord adds one more set of five prohibitions (Leviticus 18:19-23) to complete the standard of conduct. The first forbids marital sex during the wife’s non-fertile menses; the second, adultery with a fellow Israelite’s wife (adultery itself having already been forbidden at Sinai); the third, sacrifice of children to Molech. The fourth, the notorious one, forbids lying with a man as with a woman (18:22), and the last, directed at both males and females, forbids bestiality.
None of these marks a class of women as unmarriageable, as do the previous proscriptions of not only sisters-in-law but also (as we have just seen) the blood relatives of sexual partners. Instead, the forbidden actions share this in common: each of them injures or insults female generative sexuality, specifically in its aspect of contributing to the formation of a Jewish family, and thereby harms future generations of Jews and the generational potential of the Jewish people as a whole, couple by couple. Even surrendering your children to Molech—child sacrifice, in most interpretations—fits under this rubric.
Similarly with the ban on homoerotic conduct in Leviticus 18:22, which has received too much attention from Jews, from non-Jews, and from the mainstream media. It, too, adds but one more action to a list of sexual practices that men and women have indulged in but that God now forbids as contrary to Israel’s nationhood, virtue, and biological existence. In its Scriptural context, using a man as a woman is only one naughty thing among many that any man, Israelite or Canaanite, might happen to do. Canaanite law may not prohibit them, but Israel’s law does. (In later rabbinic understandings, these prohibitions will also find a place among the “Noahide” laws considered binding on all humanity.)
And what exactly is being forbidden? Lying with a man as with a woman has nothing to do with “sexual identity”; about this, the Conservative and Reform rabbis would seem to have a point, if one ultimately contrary to their purposes. What is forbidden is not positive sexual attraction to members of one’s own sex. It has nothing to do with the durable, romantic, and faithful relationships between lovers of the same sex to whom so many want to “give” Jewish marriage. Rather, “lying with a man as with a woman” is a negative act of substitution, a makeshift for sexual intercourse with a woman in a potentially generative act. Leviticus forbids this and the other specified varieties of sexual acts not because they are inherently polluting but because they are what affront human dignity, mock the sexual identity and dignity of the female sex, and violate God’s first commandment to humanity to be fruitful and multiply.
None of this need matter today to the sexual pleasure enjoyed by a gay couple, their romantic happiness, or their wish to be legally married if a majority of the voters of a state have extended marriage to couples of the same sex. But if there is to be Jewish marriage, it does matter. The gay couples now being united by Reform and Conservative rabbis are not being granted a marriage, or a “union,” that will answer to the Bible’s first injunction of fruitfulness, that obligates men in a different way from the women whom they marry, that has certified that neither person is prohibited from marrying by the standards of Jewish law, that can be dissolved if it is not generative (or, according to the talmudic rabbis and later legists, for other sufficient reasons), and whose purpose as an institution that is not merely marriage but Jewish is to create new Jews by means of sexual intercourse between the married pair.
Of course, either partner in a gay marriage may, if male, conceive a child with a woman or, if female, conceive and give birth to a child who was fertilized by a male. The wonders of modern reproductive technology may also be introduced here. And, of course, many gays do bring children into the relationship, and these children may be adopted by the opposite partner or, if the law allows, automatically inscribed as the children of both partners. But, at least when it comes to the definition of Jewish marriage, there is no way that such children can be regarded as the products of a sexual relationship between the two. They are generated not by a marriage, but by an individual who happens to be married. They will be Jewish if recognized as Jewish under the traditional rule of matrilineal descent (unilaterally altered by the Reform movement in the 1980s to include patrilineal descent); such Jewish identity is entirely independent of whether the marriage itself has been declared Jewish. In this sense, a gay parent of a Jewish child can be said to participate through that child in Jewish history as Eliezer Berkovits conceives of it; the same, however, cannot be said of his or her partner, or of their relationship.
A lifelong, sexual, deeply connected, communally recognized and honored relationship between two Jewish members of the same sex has much in common with the relationship between Jewish men and women who are married under Jewish law; but it has nothing of the telos that makes an ordinary marriage a Jewish marriage and nothing of the telos of the Jewish marriage that straight couples enter into, whether or not they have children. If Jewish marriage—however worthy, however wanted, however needed by same-sex couples—is defined in such a way that it has a different telos, what happens to its power to define and confirm the Jewishness of children born to Jews?
5. JEWISH MARRIAGE, CHRISTIAN MARRIAGE
It is, of course, a very long road from the world of the Hebrew Bible to the world of marriage in 21st-century America, and many and complicated are the steps in between. As far as Jewish marriage is concerned, one huge intervening step was the creation in the ancient world of a new typology of marriage—Christian marriage—that was aimed explicitly at undoing Jewish marriage and transvaluing its values.
So ingrained did this Christian type become in the mentality of the West, so powerfully do the words spoken and the vows exchanged in a Christian wedding ritual resonate to this day, that most people, Jews included, tend to accept them as the universal ideal and aim of marriage itself. Those words, and especially the promise of unconditional fidelity “from this day forward . . . till death us do part,” hover imperatively in the background of even the most secularized modern nuptials.
Just as the laws set forth in Leviticus 18 taught the Hebrew tribes how to become Israelites and how, as Israelites, to generate new Israelites, Christianity has kept its own record of the moment when Jesus may be said to have invented the idea of Christian marriage. The locus is in the Gospel of Mark, chapter 10.
Here, having for the first time manifested his divinity and announced it openly to his disciples, Jesus returns to his accustomed practice of going out among the people. As “crowds gathered around him,” and “he began to teach,” he was tested by a group of Pharisees, who “came up and asked him if it was lawful for a man to divorce his wife.”
Rising to the challenge, Jesus demands a biblical prooftext. The Pharisees comply, with characteristically “Pharisaic” concision: “Moses permitted a man to write a certificate of divorce and to send [his wife] away.”
The response is swift in coming:
Jesus said to them, Because of your hardness of heart [Moses] wrote this commandment for you. But from the beginning of creation [Genesis1:1], male and female He made them [1:27]. For this reason a man shall leave his father and mother and be joined to his wife, and the two shall be one flesh [2:24]. So no longer are they two, but one flesh [2:24]. Therefore what God has joined together, let not man divide.
With these words, built up entirely—with one exception—of quotations from Hebrew Scripture, Jesus institutes a type of marriage that never existed before, and that even today exists nowhere outside of what was once Christendom: a type “natural” not just to believing Christians but to everyone, religious, anti-religious, or indifferent, Jewish or Christian, straight or gay. In our world, too, marriage is seen principally as a matter of a relationship between two individuals, shorn of any necessary connection with childbirth, family, and society, and it joins the twain into a corporation in which they are no longer two separate beings but “one flesh,” for life.1
As for the single verse not assembled from Torah citations—in the more famous rendering of the King James Version: “What therefore God hath joined together, let not man put asunder” —Jesus positions this as if it were the inevitable conclusion of his argument from Scripture. But it actually has no connection to the marriage described in the Torah, either for the first man and woman in the Garden of Eden or for the Hebrews in the desert. Instead, Jesus has just forbidden divorce. Later on in the same chapter, speaking in private to his disciples, he will still more radically go on to equate divorce with adultery: in Jewish law, a capital offense.
Permitting divorce was not merely a Jewish quirk. It was also the practice of Jesus’ Greek and Roman contemporaries, and till today it remains the practice of every non-Christian culture of which we know. Since America’s is a Christian culture, the ideal of “till death us do part” has long been an element of our psychic luggage, along with its corollary that a marriage ending in divorce is a cause for mortal shame. Many Jews feel the same way: not only because there are reams of statistics on the deleterious effects of divorce on women, on men, and on children, but because Judaism itself has long shared the notion that there is something holy about lifelong fidelity between married couples, and something unavoidably tragic about divorce. And yet, as even the ancient rabbis sadly admit, divorce is part of marriage, and Jewish marriage is inconceivable without the ability to dissolve it, particularly in the event of childlessness.
Which brings us, even more significantly, to the words that Jesus omits to quote from Genesis, even though they follow immediately upon the phrase—“male and female He made them”—that he does quote. We have already encountered those words: “And God blessed them and said to them, Be fruitful and increase, fill the earth and subdue it.”
One might think that any reasonably learned Jew affecting to remind another Jew about marriage would begin with these, the first words God addresses directly to any human being. Instead, in speaking to the Pharisees, and almost to compensate for his daring elision of God’s direct words, Jesus proceeds to cite Genesis 2:24 twice, underlining it through repetition as if it were itself a divine commandment instead of a narrative statement or piece of internal exegesis: “For this reason a man shall leave his father and mother and be joined to his wife, and the two shall be one flesh. So no longer are they two, but one flesh.” (Mark 10: 9-10) Marriage here pivots away from the couple’s fruitfulness—which is to fill the newly created world—to the couple’s “oneness”—an image. Left out is God’s purpose in creating male and female in such a way that their joining creates a third presence: a new generation of human beings.
It is certainly true that Jesus does not exclude sexuality from marriage; but he does exile the reason that sex and marriage exist, thereby both overvaluing and undervaluing sexual intercourse. On the one hand, he makes the relationship between sexual partners eternal and adamantine, except when illicit sexual intercourse destroys the relationship utterly. On the other hand, he abolishes the profound investment of divinity in the more than occasional consequence of sexual intercourse. When Christians marry, in Jesus’ view, they become a static image of the divine creation. When Jews marry, and the marriage is fruitful, they become co-creators with God of the world’s future.
6. JEWS AND THE MODERN MARRIAGE CRISIS
The differences between these two ideas of marriage, the Jewish and the Christian, are far-reaching and deep. What do they have to do with the issue of gay marriage under Jewish auspices? In addressing that question, it might help to pull back briefly and consider the state of modern marriage altogether.
It is all too well known that marriage in general, in America and everywhere in the West, is in a condition of crisis. The symptoms include the rapid fall in marriage rates among all races, socio-economic classes, and age cohorts; the collapse in the rate of children born to married couples; the dramatic rise in unmarried and typically childless cohabitation; and the rapid increase in what used to be called illegitimate births. To this list of social disasters, many would add the divorce rate, although that rate rose to its present level almost two decades before the fall in the birthrate for married couples.
In attempting to counter the dismal reality of this breakdown, whose victims have been overwhelmingly poor and female, alarmed social scientists and others have rushed to refurbish the reputation of marriage by documenting and publicizing the demonstrably great benefits it confers in terms of physical health, prosperity, and emotional happiness, and the equally demonstrable downsides of neglecting to marry a child’s other parent, or of divorcing a spouse. Joining the social scientists in the battle to prove that marriage is good for you are figures from the fields of religion and psychotherapy urging the view that, sexual pleasure being universally acknowledged to be a consummate human good, marriage makes it all the more pleasurable. “Marriage,” write the authors of one recent defense of the institution from a Christian perspective, “essentially involves all-encompassing—including bodily—union, and sex unites bodily as no other activity can.”
The efforts of the social scientists are statistically compelling, even irrefutable; those of the spiritual and psychological advisers are welcome if a trifle hard to credit. (Not that it is impossible to imagine that sexual pleasure is enhanced by marriage; but if this were the case in general for the male sex of the species, marriage would never have been necessary.) The unfortunate truth, however, is that the majority of adults in any society, and particularly those in power, have always known what social science has recently discovered about the social benefits of marriage and what others claim are the sexual benefits. Until recently, that majority also had the power to impose what it knew on the young and on those of any age in search of romantic adventure.
No longer: the sun has set forever on young or not so young love cringing before the great beast of Respectability and Custom. For various reasons, no one has the will to make marriage mandatory for sexual partners by means of custom, law, or force. That being the case, all of the social scientists’ statistics and all of the churchmen’s exhortations will exercise not even a featherweight’s impact on the decisions of unmarried parents-to-be or of married partners. The oppression has vanished, and with it, not only the suffering it caused but much of the good that marriage can do—good for which we have no substitute, and which therefore has been undone. Indeed, so despairing of remedy are some observers, Jewish and non-Jewish alike, as to permit themselves the wistful thought that perhaps the outspoken eagerness with which some homosexuals are rushing to embrace the protections and benefits of marriage might yet inspire their straight peers to mend their so far incorrigible ways.
In the meantime, while we await that distant eventuality, American Jews have managed to achieve first place in the nation’s marriage-and-population bust. The least likely American group to marry at all, Jews marry, when they do marry, at an older age, which means that their marriages produce disproportionately even fewer children, if any. The consequences of this drastic birth dearth, especially when added to the longstanding problem of Jewish intermarriage—a problem sorely besetting the non-Orthodox denominations and the unaffiliated—are profound and will become more so. Not even the countervailing tendency of modern-Orthodox Jews to marry earlier and have more children can deflect the downward trend. As for the ultra-Orthodox, demographers observe that no matter how furiously they reproduce, their numbers start from such a small base that their offspring cannot begin to replace the lost generations until long after a radical contraction will have taken place.
This being the case, the debate over the institution of gay marriage in synagogues and temples might have afforded an opportunity for rabbis to meditate upon the purposes of marriage itself for Jews, and to recommend those purposes to their straight congregants. After all, no reinterpretation of halakhah is needed to justify the age-old process that uniquely produces new Jews from old, a process ritually mandatory on both partners and mandatory, for most of Jewish history, on all Jewish men of marriageable age. For the most part, however, there has been silence on this score from the pulpit. If one were being uncharitable, one might almost say that Jewish clergy seized upon the problem of gay Jews’ feelings of exclusion in order to avoid having to deal with the very real and existential crisis in Jewish marriage.
One can appreciate their reticence. For a long time now, anguished Jewish parents have been pressing community leaders and non-Orthodox rabbis to accept and bless the unions of their rapidly aging sons or daughters with non-Jewish partners of the opposite sex. For such parents-yearning-to-become-grandparents, as the sociologist Sylvia Barack Fishman has observed, “The word ‘intermarriage,’ after all, contains the word ‘marriage,’ and that is enough.” It would thus be little wonder if their rabbis, some number of whom have steadfastly declined to officiate at intermarriages, should have proved all the more receptive to the pleas of two lovers of the same sex both of whom, at least, are Jewish.
In so doing, however, they have traduced Jewish marriage and repudiated their duty to the Jewish future.
Why some gay couples want marriage is understandable. What they want from marriage—honoring the relationship, public recognition of the relationship, a set of duties toward one another that cannot be broken without ending the relationship—can be given, where allowed by law, at City Hall. If in addition they seek to elevate the merely human, contractual character of the relationship to a level that is transcendent in some way, perhaps even sacred, all this can be had, if they are Christian, by marriage in a Christian denomination that permits it. And indeed, for all of the condemnation of homosexuality in Christian teachings across the ages, the sacramental Christian idea of marriage, however secularized, may legitimately be thought better suited than almost any other to what is being pursued by marriage-seeking gays. By contrast, if Jewish gays want Jewish marriage according to the law of Moses and Israel, they are asking for something that does not and cannot exist among the commandments.
Earlier on, I reviewed the obstacles posed to both Reform and Conservative Judaism in acting to recognize marriages between two Jewish gays and to certify them as fully Jewish. The obstacles may be summed up in the word “kiddushin.” In 1996, the rabbinical body of Reform Judaism wavered over this stumbling block before eventually establishing grounds, mainly for extra-Jewish reasons, on which to pronounce gay unions (note the euphemism) “worthy of affirmation through appropriate Jewish ritual”—and then they went ahead anyway and recruited the term “kiddushin” for the ritual itself.
Like their Reform colleagues, the Conservative rabbis also stipulate that both partners to a same-sex relationship must be Jews if they are to be married in Conservative auspices. But “married,” for them, is the operative word. To be sure, the rabbis are at pains to distinguish their new same-sex “marriage ceremonies” from the “kiddushin ceremony developed in Jewish tradition”: the ceremony that contains (though they do not say so) not only the core declaration of betrothal “according to the law of Moses and Israel” but also an explicitly-voiced public reminder that not all sexual relationships are permitted by God. In other words, they have knowingly created a second, separate class of marriage for the population of same-sex Jews desirous of marrying under the canopy of Conservative Judaism. But they then proceed to blur this distinction by referring to both the set “developed in Jewish tradition” and their own, doctored set as bona-fide ceremonies of Jewish marriage, conferring their halakhic imprimatur equally on each. (Actually, they seem to prefer the latter set of ceremonies, untainted as it is by the former’s “gender-specific” language and “inherently non-egalitarian” nature.)
Having done all this, have these rabbis not also committed a deception, however kindly intended? The wedding ceremonies they have devised for same-sex marriages manifestly fail to conform to the Conservative movement’s own rules for consecrating lawful Jewish marriages. Might the gay partners not justifiably protest that they are thereby being defrauded of the very thing they have sought, discriminated against and deprived of the equal treatment they expect and deserve? More momentously, what now happens to the legitimacy of Jewish marriage undertaken by straight couples in Conservative synagogues? How can these Jews be said to be in conformity with a law that only selectively and arbitrarily requires conformity?
Scientists dismiss a fatally defective hypothesis by saying, “it’s not even wrong.” A law that needn’t be obeyed can hardly be said to be a law.
7. THE JEWISH STRUGGLE TO EXIST
A living Jew can participate in the historical future of the Jewish people in various ways; one of them is through his or her participation in a Jewish marriage that is fruitful and has generated new life. Not all Jews have this opportunity, which is a matter of fate, not virtue or entitlement, but most can partake of it and thereby grow closer to God and His creative purposes. By contrast, a union of two Jewish homosexuals yields two Jews who, however devotedly and intensely they love each other, are instantly and forever in violation of the first commandment to married Jews. Their relationship may well possess qualities transcending anything that Jewish marriage can bestow. But in truth, that relationship is no more than tangentially pertinent to the struggle of the Jewish people to continue to exist.
From the perspective of that struggle, to say that two Jewish gays are in a Jewish marriage, or to “give” them a Jewish marriage, is not a harmless fiction. More than impairing Jewish marriage as presently constituted, it destroys its past, its integrity, its reason for being. To maintain, as Reform and Conservative rabbis maintain, that Jewish marriage specifically needs to be “repaired” and redefined in this respect is to nullify every aspect of the Mosaic law of marriage and to deny its justification for existing.
I return to where we began: no doubt, the overwhelmingly large numbers of American Jews who support gay marriage in general do so for reasons having nothing to do with Judaism, or with any religion. As for those who support it both in general and in particular for gay Jews, they might be under the sincere but mistaken impression that it accords with the teachings of Judaism. Such Jews can be excused their false impression, which they may well have received from their trusted religious authorities, guardians of their authentic traditions and of the identity of the Jewish people. Is it too late even to ask whether anyone will hold those guardians to account?
JM in the AM – Interview with Rabbi Kenneth Brander - OTS President and Rosh HaYeshiva Rabbi Kenneth Brander was a guest on the Nachum Segal Network’s “JM in the AM” radio show on February 19th. Rabbi Brander ...
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