Rabbi Steve Greenberg, who received his ordination at RIETS (Yeshiva University), made headlines one month ago when he presided over the marriage of two men. Granted, he was quick to note that this was not an halakhic marriage (kiddushin), but that didn’t matter. Almost immediately (because nothing stirs Orthodox rabbis into action faster than
child abuse gay people), rabbis around the world were quick to declare that he was no longer to be considered an Orthodox rabbi and that this was not an Orthodox procedure.
Depending on one’s understanding of Orthodox Judaism, the civil union of same-sex partners might be forbidden for one of two reasons. Either because it is something new (in the words of the Chasam Sofer, החדש אסור מן התורה בכל מקום), or simply because it is an innovation that is made in line with changing social norms and not one that is governed by religious sentiment. Strangely, however, these were not the reasons that were cited by Orthodox rabbis who were desirous to defend our sacred institutions from the hordes of homosexuals swarming at the gates. Instead, people complained that the Torah forbids homosexuality and that the rabbinic literature forbids same-sex marriage. Both of those arguments are completely false, such that the people who are making them are either lying or lazy.
The Torah forbids anal sex between two men. In fact, the word that is used to refer to “lying with a man as with a woman” is תועבה, which means “something disgusting”. It is a capital crime. The Torah does not speak anywhere of lesbianism (which is a famous enough omission that I don’t need to mention it), and there is not so much as a single passage within the copious reams of rabbinic literature that forbids non-sexual intimacy between two men or two women. Given that there is more to marriage than physical intimacy, more to physical intimacy than sex, and more to sex than anal sex, I see no reason whatsoever as to why people should get so upset at the prospect of homosexuals (who are already in relationships) being given the honour of having their partnership recognised by the state. Does it not make sense that they should be allowed the opportunity to draft a contract that makes their relationship legally binding? Even if only for the possibility that they may have to separate in the future?
There is nothing within the biblical or rabbinic literature to preclude two people drafting such a contract. There is nothing to preclude them throwing a party in order to celebrate having done so. There is nothing to preclude them using the word “marriage” (which is not a Hebrew word and which does not necessarily denote a halakhic reality). And there is nothing to prevent the broader community turning a blind eye towards whether or not two men may have anal sex as a result of all this (which they wouldn’t be doing if their marriage went unrecognised, obviously). So why should it be problematic? Because when it comes to homosexuality, a lack of explicit condemnation within the rabbinic literature is insufficient to allow for permissibility. When it comes to a whole slew of other phenomena, from cooking food on Shabbat to eating shellfish, there is nary a rabbi within our community who does not turn a blind eye. The reason they cannot do this with homosexuality is probably obvious to you now, if it wasn’t already.
On December 6th, The Australian published a letter from the Organisation of Rabbis of Australasia (an umbrella organisation that aims to represent Orthodox Jews in Australia and New Zealand), concerning our government’s recent decision to allow a “conscience vote” on same-sex marriage. There is much within the letter that I find sickening (not least the injured tone that the author adopts in the second paragraph), and I wonder why anybody would want to take a public and principled stand on something when they’ve already lost. Nonetheless, I include it here for your edification. Bearing in mind that this was written by Orthodox rabbis, see if you can spot a problem:
“THE Organisation of Rabbis of Australasia opposes any legislation to legitimise same-sex marriage. This is not intended to show any discrimination against the gay community, but simply to uphold the sanctity and purpose of marriage, which is the union of man and woman not only to express their love for one another but also to bring future generations into the world.
The institution of marriage and family life, as defined and practised for thousands of years as between a man and a woman, a father and a mother, respectively, is far too important and essential to the bedrock of society and civilisation as we know it to be undermined by those who presume to redefine its essence. Moreover, we are deeply concerned that, should any such redefinition occur, members of traditional communities like ours will incur moral opprobrium and may risk legal sanction if they refuse to transgress their beliefs.
That prospect is unacceptable to all people of good will on both sides of this debate. We call upon Australians to stand opposed to any attempt, whether judicial, legislative or religious in nature, to bestow the sanctity of marriage upon same-sex couples.”
Did you notice it? For people who are so committed to the halakha, this shabby little letter doesn’t even come close to making an halakhic argument. The reason for this is that there is not a single rabbi on the ORA who can. When it comes to any issue other than this one, that would be a decided loss; here, however, it’s almost advantageous. So deeply entrenched is homophobia in Orthodox Jewish society that nobody is even prepared to reconsider the nature of their attitude. It’s obvious that “Torah-true Judaism” forbids same-sex civil marriages, so if you bother opening a book and trying to find where that is the case, you’re only wasting everybody’s time. Much easier to refer to “the bedrock of society and civilisation as we know it”, and then just leave it at that.
Perhaps Rabbi Dovid Freilich, the president of the ORA, sees himself as the mara d’atra: the supreme rabbinic authority of these lands, who can therefore make general pronouncements and in the spirit of daat Torah be accepted at his word. Perhaps we have now entered into a period where the authority of the rabbinate is swelled only by the ignorance of the general population, who want an official body like the ORA to do their thinking for them. Or perhaps homosexuality is just a special case: any pronouncements made in favour of equal rights for gay people looks liberal, while movement in the opposite direction comes across as frum. Jewish law does deny two individuals of the same gender the right to an halakhic marriage (kiddushin), but there is only one problem with the acceptance of same-sex civil marriages and it cannot be found in any book: a prevailing number of rabbinic scholars hate homosexuality. Unfortunately, they haven’t yet figured out why.
[Note: Rachel beat me to this one, and it's worth reading her take on the situation as well - even if only to remark upon the timbre of the comments, which reinforce the illegality of same-sex marriage without even attempting to base such arguments on the halakha.]