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"Same Sex Marriage, Jewish Law, and American Law":

An interesting post by Bruce Adelstein on the Three Jews blog, focusing on "when Jews" -- presumably observant Jews -- "should support or oppose an American law of general applicability that is not in accordance with halacha." His conclusion: "[W]e do not base free speech law on [Jewish legal principles], and we do not even base opposite-sex marriage law on the halachic definition of marriage. We should not oppose civil same-sex marriage merely because it differs from halacha."

Happyshooter:
Strange that his conclusions on faith based voting actions would support a political position of himself and most of his readers.

Very strange how that worked out.
10.22.2008 2:29pm
Sasha Volokh (mail) (www):
Happyshooter: And...?
10.22.2008 2:31pm
BruceA (www):
My point was not that religious beliefs compel supporting same-sex marriage. It was that we often support civil laws that permit what our religious beliefs preclude. (Malicious but true gossip, for example.)
10.22.2008 2:39pm
Sasha Volokh (mail) (www):
Bruce: But you still conclude that your religious beliefs don't prevent you from doing what you might want to do anyway, which in Happyshooter's mind may be just as damning!
10.22.2008 2:50pm
Hoosier:
It was that we often support civil laws that permit what our religious beliefs preclude.

Thank God.

Given the power of the Zionists in this country, if they imposed Jewish law here, I wouldn't be able to--How do the Zionists say it?--"shtup" my wife for, like, two weeks every month. And she is one hot shiksa. No wonder the Jews the Zionists are so hostile to everyone!

And pardon me if I got the Yiddishism wrong. I only recently found out the Mosaic law does not condemn "boychicks." And don't me started on "pissers."

(While I'm at it, why is Manischewitz so sweet? Do the rebbes make you guys do that or something?)
10.22.2008 2:53pm
BruceA (mail) (www):
But you still conclude that your religious beliefs don't prevent you from doing what you might want to do anyway, which in Happyshooter's mind may be just as damning!

True. Perhaps if we had a nice theocracy, things would be better. But when we're stuck with a regular old pluralistic democracy, we're just stuck. : )
10.22.2008 3:02pm
Happyshooter:
Happyshooter: And...?

I think I said it very well. The rules of his faith conflicted with the political position of he and his friends, so he argued that his faith should not influence his political position.

He then ran with that to: 'I am both a good member of my faith and a good liberal, at the same time!'.

I disagree with the logic of his results.
10.22.2008 3:07pm
BruceA (mail) (www):
Well, how would you distinguish malicious true gossip. It is strongly prohibited under Jewish law, strongly protected under the First Amendment, and I would assume that most religious Jews (and probably most religious Christians with the same beliefs) strongly support both.

Why is supporting civil same-sex marriage different?
10.22.2008 3:10pm
BruceA (mail) (www):
Just to clarify my personal beliefs --- I am more on the moderate / liberal end of Judaism, and so I don't condemn homosexual activity. But my argument was addressed to Jews who do.
10.22.2008 3:12pm
wm13:
The linked article seems a little deficient, in that it doesn't explain when, if ever, Jews should oppose laws that violate halacha. I'm guessing (I'm with Happyshooter) that the author's answer is, "When halachic principles coincide with conventional left/liberal politics, embrace halachic principles. When the two conflict, ignore halachic principles. What good is a God who doesn't support you politically on every issue?"
10.22.2008 3:12pm
JollyBlue (mail):
Mr. Adelstein is right; there's a large difference between MY opinions and OUR laws, especially when those opinions are based on religion.

Judaism divides laws into those based on wisdom and those based on instruction, the word of G-d. Laws based on wisdom are those that any reasonable culture would eventually enact; only Jews are obligated to follow those based on instruction. It is debatable which category the marriage laws belong in, therefore it is appropriate to base your vote on what you believe is best for American law, rather than what aligns best with Jewish law.
10.22.2008 3:13pm
Ben P:

He then ran with that to: 'I am both a good member of my faith and a good liberal, at the same time!'.

I disagree with the logic of his results.


and you thereby agree with the proposition that everyone who has closely held moral beliefs should attempt (through voting at least) to enforce those beliefs upon everyone else?

The conclusion that there are certain practices that are morally wrong in my opinion, but that the government has no business enforcing my morality on other people is not only pretty reasonable, but pretty fundamental to a libertarian outlook.
10.22.2008 3:15pm
BruceA (mail) (www):
My answer to wm13's question is essentially the same as Ben P's. Religious law governs particular religious communities. But America is a diverse country where people of different religious communities and non-religious communities and no communities must live together in a civil society. To accomplish this, we should restrict freedom as little as possible. And that position as a matter of civil law does not conflict with the position that we should not always exercise this freedom as a matter of religious law or personal ethics.
10.22.2008 3:26pm
Happyshooter:
In response to the well written 'gossip' comment by Bruce A:


In my faith, killing people without a good reason is not allowed. Killing babies because mom will be hindered in her life for a few months before she can adopt it out is not a good reason. Voting to allow her to kill under those circumstances violates my faith.

Same thing with weapons. Jesus said if you want to follow him and are unarmed, sell your cloak and buy a sword. Voting to ban weapons is a sin.

God said adultery is a sin. Voting to allow people, two men, or one man/one woman, or two women, to commit the sin is a sin.

There are no results where I can say 'in my life of faith this is a bad thing, but I will support the bad thing in my civil life'. My life is both civil and faith based, and I strongly suspect yours is as well.

Side note, I am not versed in Jewish teaching, so I can accept a basic tenant that says 'These are the rules of life and goodness for you, but they are not of our faith/a lesser person, so it is okay for you to give them permission to do evil while you sit and watch'. I have never seen this rule expressed, though, even in my law school criminal law days where there were a number of jews in the class, and the subject of the basis of crimes and punishment were being discussed (and many times run into the ground), and the subject would have come up.
10.22.2008 3:29pm
Colin (mail):
God said adultery is a sin. Voting to allow people, two men, or one man/one woman, or two women, to commit the sin is a sin.

God said idolatry is a sin, too. Would voting to permit non-Christians to pray according to their beliefs be a sin?
10.22.2008 3:39pm
Oren:
If you want an easier example, tattoos are expressly forbidden by Lev 19:28. I don't see any good judeo-christians rushing to criminalize tattoo parlors.

Voting to allow people, two men, or one man/one woman, or two women, to commit the sin is a sin.
No, there is no "contributory infringement" theory of Jewish law. Put another way, there is no positive requirement that I meddle in my neighbor's affairs to prevent him from transgression.
10.22.2008 3:42pm
GoldwaterGirl (mail) (www):
Happyshooter,

In Jewish law, there are different laws for Jews and Gentiles. That doesn't mean Gentiles are inferior, just that Jews have taken on more responsibility. If a Gentile wants to take on the responsibility, he can convert.

Allowing people to have the freedom to commit an action or not commit an action is not the same as allowing them to commit the action. Besides, we do not allow or disallow people to do things here. People can do whatever they want, they just get punished for some things. In reality, I am free to break my neighbor's window, but I may get punished for it. So your argument there is moot.

Things which deprive others of their life, liberty, or property are different from actions that do not, but with which we disagree.

I agree that civil marriage is a legal contract that offers protections to the participants. It is different from a religious marriage. The government should not offer this contract to some couples, and not others. If someone can give me an argument why a same-sex couple should not have access to the same legal protections as a heterosexual couple based on a legal argument and not on religious authority, I would love to hear it.
10.22.2008 3:47pm
BruceM (mail) (www):
Religious people should kill themselves whenever the thought of applying religion to law enters their little minds.
10.22.2008 3:51pm
Hoosier:
BruceM: But the Code of Canon Law doesn't allow me to kill myself. Which presents a conundrum for people who think like like you.
10.22.2008 3:56pm
Cornellian (mail):
God said adultery is a sin. Voting to allow people, two men, or one man/one woman, or two women, to commit the sin is a sin.

This "voting to allow" idea is the key insight into the mindset in which everything is prohibited except to the extent the government permits it.
10.22.2008 4:00pm
A. Zarkov (mail):
Hoosier:

"I wouldn't be able to--How do the Zionists Orthodox say it?--"shtup" my wife for, like, two weeks every month."

You don't know half of it. Ask about the sheet with the hole.
10.22.2008 4:08pm
BruceA (mail) (www):
There are no results where I can say 'in my life of faith this is a bad thing, but I will support the bad thing in my civil life'. My life is both civil and faith based, and I strongly suspect yours is as well.

I'm not sure that's right. Here are a few examples --- and correct me if I am wrong.

I assume that your Christian beliefs require giving charity. But I assume that you would oppose a law that mandated charitable contributions.

I assume that your beliefs include a prohibition against malicious but true gossip (my original example). But I assume that you would not support a law banning such speech (ignoring of course the First Amendment problem).

Colin's example is another good one. I assume that your beliefs prohibit idol-worship. But I would assume that you would oppose a law outlawing that.

There are of course laws that prohibit behavior that violates both civil duties and religious duties (murder, stealing, etc.) But these civil laws are justified because the proscribed behavior imposes harm on others, not because it is a form of religious duties.
10.22.2008 4:08pm
Oren:

This "voting to allow" idea is the key insight into the mindset in which everything is prohibited except to the extent the government permits it.

Very well put. For those of that consider human freedom as unbounded except for the small slice we surrender to the state such arguments always come off wrong. Government authority is limited to those things required for the orderly pursuit of liberty.
10.22.2008 4:21pm
DianeK (mail):
I commend those of you (some known to me, some not) who have endeavored to keep this conversation on a high intellectual/legal plane, and resisted descending into anti-Semitic, hate-filled gay-, Jew-, or liberal-bashing. The "coincidence" of one's interpretation of the dictates of one's religion, and one's politics in general, need of course not be the result of the most cynical accommodationism (on either side). Perhaps it is actually the result of careful reasoning. This actually occurs -- I saw it before my very eyes in a talk given at my school by someone, herself an observant, respectful Jew, who concluded, with obvious regret, that on her best legal analysis, civil permission for eruvim in the U.S. violates the Establishment Clause. She did not turn intellectual backflips to make it come out "the way she wants." I might think she's right, I might think she's wrong -- but it is in fact possible for people to conclude that what they most desire is nevertheless not legally justified.
10.22.2008 4:21pm
DG:
I think part of the miscommunication with HappyShooter is the Christian assumption that Judaism is just Christianity without Jesus. Nothing could be farther from the truth. The whole way of looking at religious obligations, sin, etc are completely different. Christianity is a universalist faith, so when they say something is a sin, its a sin for everyone whether they are Christians or not. Judaism - not so much.
10.22.2008 4:21pm
Ken Arromdee:
Ask about the sheet with the hole.

You mean this one?

http://www.snopes.com/religion/sheet.asp
10.22.2008 4:29pm
Hoosier:
A. Zarkov--The sheet with the hole is a myth, isn't it?

Not that I could prove that it is. We have an Orthodox community here in town, but I don't spy through their bedroom windows; my ladder doesn't reach that high.

I've seen the sex-sheet in movies, and with re: to non-Jews. (E.g., Like Water for Chocolate.) I couldn't say about other cultures, but I have read that Jews don't have anything to do with that stuff. Jews celebrate sexuality within marriage if I'm not mistaken.

So do I, but the Church here in the US has been shaped by the Irish. (My people, to be frank.) So it has been rather more ascetic than Catholicism elsewhere, especially when it comes to what the Papal Bull Quam singulari calls "nookie." (Or is that my buddy from Skokie? Well, one or the other.)
10.22.2008 4:38pm
Oren:

Jews celebrate sexuality within marriage if I'm not mistaken.

Not just celebrate. Sex between married couples is considered divine since, by creating life, the couple is reenacting the creation of the universe itself.
10.22.2008 4:41pm
Jon Rowe (mail) (www):
The notion that it is a sin to vote to license what your religion considers a sin is a dangerous idea, and not necessarily biblical. And in fact this notion — if it's a sin, it must not be legal or licensed — is pregnant with tyrannical anti-liberty implications.

One reason why I study religion so much is that it was religious disputes and the need to deal with religious pluralism that eventually led to classical notions of liberty and equality. And it was religious dissidents who especially did the groundbreaking work in arguing for a free and equal society.

The Jews, until modern Israel was established, were always dissidents in dominant cultures, and hence never had an opporturnity to impose their religious morals on society as a whole. As such it shouldn't surprise us that Israel has a strong secular culture and Jewish figures in America have been on the forfront of arguing for religious liberty, secular government and seem to have little concern about forcing their religious tenets on the rest of the culture. Jewish people, by in large, want to freedom to eat Kosher; they don't want to impose Kosher on the rest of society. And that's the way it should be with all sectarian religious values, in my opinion.
10.22.2008 4:43pm
wm13:
Well, BruceA gives a slightly different answer than the one I attributed to him. He says that a Jew should never seek to apply halachic principles to evaluation of laws of general applicability. That's a defensible view, if you believe, as many do, that the public sphere is a tiny, cordoned off area in which a believer may occasionally have some tangential involvement (like paying taxes), but that all the important, transcendent or eternally significant activities in life occur somewhere else. That is, I would have to say, a view common among oppressed minorities ruled by foreigners, but perhaps unsuitable for free people who govern themselves.
10.22.2008 4:44pm
Houston Lawyer:
Clearly, not every sin should lead to a civil penalty. However, there is a wide chasm between tolerating something and actively promoting it. If your religious group opposes certain behavior, you should join your fellow believers in that opposition. Either that or start a new group that agrees with you.
10.22.2008 4:50pm
brad:
Why would I oppose about a law punishing idle gossip? If I follow halacha I'm not going to do it anyway. If fear of secular authorities prevents other Jews from committing it that can only be a good thing (the inverse form of the stumbling block mitvah) and at least according to some authorities will hasten the arrival of the messiah.

Furthermore even if the law is only limited to gentiles, the rule regarding idle gossip is more like the prohibition on murder than the commandment to avoid eating pork, and therefore should be seen from a Torah point of view as one of the rules of a just society.
10.22.2008 4:58pm
Christopher Phelan (mail):
There is a distinction to be made here. For a religious Jew, I can't see how it is It a sin to vote for a government policy to allow or not punish gossip. That's just making a distinction between personal behavior and how you vote for the government to use force. But that's different than voting for a government policy which openly encourages gossip, officially recognizes gossip as just as legitimate as other forms of speech, has the effect of causing schoolkids to be taught that gossip is just as good as other speech, and has the effect of labeling anyone who doesn't agree gossip is just as good as any other speech as a bigot. In this case you are participating in using government force to go against (according to your religion) the wishes of God.
10.22.2008 5:22pm
Shertaugh:
There's nothing in the Bible about a president or a Congress. Clearly, the Founders were anti-Christian and -- given the role of Christians in the establishment of this country -- they were were anti-American, too.

The Bible says nothing about a progressive tax systems designed to be a front for socialist redistribution of wealth (although a tithe to finance the priestly class was okay). So the 16th Amendment is also anti-Christian and anti-American.

But spying and preemptive war . . . now that's all together another story. The Books of Exodus and Joshua clearly support these principles. So, obviously, no one can argue that Bush is anti-American.
10.22.2008 5:36pm
Oren:

That is, I would have to say, a view common among oppressed minorities ruled by foreigners, but perhaps unsuitable for free people who govern themselves.

Or perhaps a free people that live in a pluralistic society in which there are disparate and often contradictory value systems. It is perfectly rational to desire an end to these interminable culture wars in exchange for surrendering my claims to moralizing legislation.


If fear of secular authorities [who have prohibited gossip] prevents other Jews from committing it [gossip] that can only be a good thing
Absolutely not. Insofar as a Jew follow this law only out of fear for the worldly consequences he has been stripped of the opportunity to make a meaningful spiritual decision. I don't applaud my dog when he doesn't shit on the rug because he is motivated only by the selfish desire not to be punished. Similarly, I don't applaud humans that follow good laws only out of selfish desire to avoid jail -- they are merely looking out for number one not exercising moral judgment.
10.22.2008 5:38pm
Hoosier:
Oren:

Or perhaps a free people that live in a pluralistic society in which there are disparate and often contradictory value systems.

Strike up the band--We have a winner! (But I'm an Oakeshottian conservative, so what else would I say?)
10.22.2008 6:05pm
wm13:
"Or perhaps a free people that live in a pluralistic society in which there are disparate and often contradictory value systems."

That would be a very libertarian system, not at all like what we have now. What we have now is a system in which the elite has decided, for reasons not entirely clear to me, that sexual liberty is precious, but that other liberties (e.g., the freedom to take drugs, or eat foie gras, or smoke cigarettes) are not. Although I am, by most measures, a member of the elite, i.e., a graduate of a top ten law school with a six figure income, I don't really share this elite value system. I would rather be able to smoke cigarettes in a bar, with the proprietor's permission, than marry someone of the same sex, but society is determined to impose a different set of values on me.
10.22.2008 6:24pm
brad:

Absolutely not. Insofar as a Jew follow this law only out of fear for the worldly consequences he has been stripped of the opportunity to make a meaningful spiritual decision. I don't applaud my dog when he doesn't shit on the rug because he is motivated only by the selfish desire not to be punished. Similarly, I don't applaud humans that follow good laws only out of selfish desire to avoid jail -- they are merely looking out for number one not exercising moral judgment.


Judaism is not Christianity. A mitzvah is a mitzvah, motive and belief are secondary. C.f. tikkun olam
10.22.2008 6:28pm
jim47:
One thing that seems relevant, but which Bruce Adelstein does not mention is that Jewish law is not really the same as the list of commandments in the Torah, it is a living (and rarely, a changing) tradition.

Halakha is the result of a very long tradition of interpretation and commentary on the Torah -- or more realistically, a long tradition of interpretation and commentary on an older tradition of interpretation and commentary on the Torah. The body of the law really only comes alive through the combination and recombination of the pieces of God's words. Throughout all these interpretation there have, of course, been disagreements, and remarkably, they are preserved all the way back to the Mishna, and later the Talmud. There are little tidbits in the texts sort of like little dissenting opinions, and like dissenting opinions, they sometimes become the majority opinion.

One argument, I think, for keeping Jewish and Civil law separate is to prevent Civil law from inappropriately constraining the living tradition of Jewish law. Now, if one is trying to appeal to Orthodox Jews, this might not be very effective, because they would not tend to argue that the evolution of Jewish law in the other movements has been to constrained. But even if it is ineffective, I think the argument is still legitimate.

The other argument for keeping Jewish and Civil law separate is that after a certain point of convergence, you either need no more convergence or total convergence, nothing in between. Jewish law itself demands that it be broken under certain circumstances. Civil law would have to recognize that as valid.
10.22.2008 6:29pm
BruceA (mail) (www):
I think Oren hit the nail on the head. We live in a pluralistic society, and so a good general rule is for all of us to refrain from imposing our moral beliefs on others unless there is tangible external harms. Being morally offended is not such a harm.

Christopher Phelan notes that one might not outlaw gossip, but one should not "vot[e] for a government policy which openly encourages gossip, officially recognizes gossip as just as legitimate as other forms of speech, has the effect of causing schoolkids to be taught that gossip is just as good as other speech, and has the effect of labeling anyone who doesn't agree gossip is just as good as any other speech as a bigot. In this case you are participating in using government force to go against (according to your religion) the wishes of God."

True, but I don't think permitting same-sex marriage does that. As I argued in my post, a civil marriage should be regarded as just a shorthand way of designating a bundle of legal rights and responsibilities that spouses have agreed to take on. Merely because the government permits people to be married is not an endorsement of their marriage in any way. After all, the government has no quality controls on marriage, and there are all sorts of horrible people that get in all sorts of horrible marriages. If we aren't willing to require automatic divorce for serious spousal abuse, for example, then we cannot seriously contend that the mere fact that two people are married carries any message of government endorsement or approval.

That endorsement or approval, or lack of it, must come solely from other organizations. So religious Jews and Christians who oppose same-sex marriage should certainly explain to their children that their religion and they do not approve of such marriages, and their churches and synagogues should not recognize such marriages, etc.
10.22.2008 6:30pm
BruceA (mail) (www):
jim47 notes that "Jewish law is not really the same as the list of commandments in the Torah, it is a living (and rarely, a changing) tradition."

I agree wholeheartedly, and a good chunk of my blog posts are on this precise point. (See my post on the Daughters of Zelophehad for an odd example. But I was primarily addressing this argument to Jews who believe that homosexual sex, and thus presumably same-sex marriage, violates halacha.
10.22.2008 6:38pm
Ariel:
When Scalia came to Boston, he said that people come up to him in church and thank him for what he's doing to ban abortions. He said that he tells them that they have him all wrong - that he would not vote to ban abortions, because there is no Constitutional basis for a ban just as equally as there is no Constitutional basis for an unlimited right. He did not say that he is personally opposed to abortion, but it's probably a safe guess that he is. He did not say that he would favor or disfavor a law banning abortions, but he is in a position where he is close to being able to decide that question and said he would not. Assuming all of this is true, Scalia is able to manage to think:

(1) Abortion is wrong
(2) A legal regime can allow abortion

This is the same thinking that Bruce is showing, just the other way around. I don't see why either of them is wrong.
10.22.2008 6:43pm
CJColucci:
"We should not oppose civil same-sex marriage merely because it differs from halacha." (Emphasis added)

I suppose this "merely" means that observant Jews could oppose same-sex marriage for all sorts of "secular" reasons, if they have such reasons, just not because it violates Jewish law.

Now I'm going out for a cheeseburger.
10.22.2008 7:01pm
BruceA (mail) (www):
Yes (although I would call them civil reasons, rather than secular reasons, but that is probably nitpicking). If a religious Jew (or anyone) thought that same-sex marriage would lead to social problems other than moral disapproval, then that would be one factor in opposing same-sex marriage, at least in my view of things.

But those factors seem to cut the other way. Given that gays and lesbians are engaged in same-sex relationships, it seems preferable that they be engaged in more stable same-sex relationships rather than less stable same-sex relationships.
10.22.2008 7:14pm
wm13:
Ariel, Scalia is speaking, as I understand, about his role as a judge. That is, as a Supreme Court justice, it is not within his proper role to make law with respect to abortion (because the federal Constitution is silent on the subject). I believe, though I could be wrong, that he would say that in his role as Catholic citizen, he would vote for an initiative that made abortion illegal, and that, other things being equal, he would vote for legislators who would vote to make abortion illegal. So I don't think he really agrees with Mr. Adelstein at all.
10.22.2008 7:14pm
Michael B (mail):
"[W]e do not base free speech law on [Jewish legal principles], and we do not even base opposite-sex marriage law on the halachic definition of marriage. We should not oppose civil same-sex marriage merely because it differs from halacha."

Arguendo, take two contrasting examples, 1) the observant Jew is a jurist, a judge or a member of a jury vs. 2) an example where the observant Jew is more simply a voting member of the public, a voting citizen at a local, state or national level.

(1) In the role of a jurist, a judge or member of a jury tasked with interpreting relevant existing law, the statement would seem to be unassailable. I.e. the jurist, who is also an observant Jew, should interpret existing law, despite any conflicts that law might have with halachic tenets that he/she would otherwise observe as a private individual.

(2) Much more simply, in the role of a private, individual, voting member of the public who's far simpler responsibility is to cast a single vote, according to the dictates of his/her own conscience, there are no restrictions such as those reflected in #1 above. Instead, it is more simply up to the individual and his/her conscience to cast a vote, yea or ney, accordingly. That can still be a yea or a ney, but to the extent the implication is that the observant Jew should necessarily avoid voting according to halachic principles, that too is not supported "merely" by those same principles, nor is it supported otherwise.

The result is that in the case of (2), a large "L" Libertarian would almost certainly vote according to those dictates, while some other variant (with some small "l" libertarian interests) take still other considerations into account.

So happyshooter's point is perfectly valid. It isn't that BruceA is wrong, it's more simply that he doesn't more fully articulate some contrasting aspects of the discussion, ironically in some sense since he seems to want to impose a large "L" Libertarian orthodoxy.

Or differently put, halachic principles do not impose a large "L" Libertarian outlook any more than they impose (upon non-Jews or non-practicing Jews) conformity to halachic precepts.
10.22.2008 7:48pm
Christopher Phelan (mail):
Bruce,

California law, through civil unions, already gives gays the same state rights as heterosexual married couples. The only thing at issue, as far as I can tell, is the word marriage.

So suppose California law allowed all speech, but used a different word for gossip than non-gossip speech (such as, say, "gossip".) Then the California Supreme Court decides that this discriminates against gossipers and rules it unconstitutional for the state of California to distinguish, even in language, between gossip and non-gossip. Then an amendment comes up to overturn the decision and allow California to distinguish, in language only, between gossip and non-gossip.

I don't see how a religious Jew, believing gossip is a sin and non-gossip is not, can vote to not allow the state of California to have different names for that which your religion defines to be different things.
10.22.2008 8:02pm
Michael B (mail):
Btw, OT and apologies for that, but it's an interesting fyi - several news articles on polls recently are erratic, unstable and even strange. E.g., here, here, here, here. I've read still other and similar reports concerning allusions to internal Democratic and Republican polls. The first one is the more recent and it refers to a nearly neck-and-neck race. That is too strange to believe on the one hand, but it's an AP/GfK poll, so it's apparently their own data and not coming from either of the opposing camps.
10.22.2008 8:02pm
A. Zarkov (mail):
"The sheet with the hole is a myth, isn't it?"

No. While it's not a widespread practice even among the ultra orthodox, there are Jews who practice it. I first heard about from a friend who is the son of orthodox Dutch Jews. Although I have not checked it out throughly. BTW the Internet is not the ultimate authority on everything. Of course, I'm not either.
10.22.2008 8:08pm
BruceA (mail) (www):
Michael B has an insightful critique, and perhaps I could have been clearer.

I was starting with the fact that Jews who follow traditional halacha already favor some laws that permit what halacha prohibits, or would oppose some laws that would prohibit what halacha prohibits (gossip, civil opposite-sex marriage laws, civil opposite-sex divorce laws). Thus, these Jews do not evaluate civil laws solely by halachic criteria; there are some other factors in play. The same should apply to same-sex marriage law.

This argument directly refutes a common argument in opposition to same-sex marriage: I think it is unethical or improper on religious grounds, and so I oppose allowing it as a civil matter. I have shown that among people who are likely to make this argument, this argument does not always prevail.

Now, Michael B is correct that this argument so far does not fully articulate a theory of when and how religious beliefs should or should not come into play in deciding whether to support or oppose a civil law. And my position is largely (but not completely) a small-L libertarian position: I generally support laws that promote freedom, unless there is some important external harm other than moral disagreement. But of course there are many other approaches one could take on what one should consider when voting. But in light of the examples above, all of these approaches must allow for the law to permit some behavior that is not in accordance with halacha.

A Jew who follows traditional halacha would oppose same-sex marriage, gossip, non-halachic opposite sex-marriage, and non-halachic opposite-sex divorce. But if that person supports a law outlawing same-sex marriage because it would violate halacha, but would not support a law outlawing the rest, he or she must come up with a theory (at least to himself or herself) explaining the difference.
10.22.2008 8:18pm
BruceA (mail) (www):
Christopher Phelan - you make an interesting point about language. Of course, the Jewish words for things would be in Hebrew, and so California could call it what it wants in English.

And that's exactly the point. The English word "marriage" itself means different things in civil law and in different religions. Traditional Jews are free to distinguish between marriages that are valid and invalid according to Jewish law, even if the validity of those marriages is different under California law. Jews don't need the California definition of marriage to correspond with the halachic definition.
10.22.2008 8:25pm
Thomas J. Webb (mail) (www):
I think this goes beyond just that we live in a pluralistic society. Even if 100% of the population was the same exact religion (impossible), it still wouldn't be right to twist the state's purpose to enforcing being a good [Christian, Muslim, etc.]. You have the freedom of thought and should not be required to follow a religion's precepts (and the freedom to convert would be preempted by laws based on religion, in the case of Islam). If breaking those lands you in Hell or makes you get reincarnated as a worm, that's really your business.

I'm always disturbed by how many posters have the mentality that "my religious beliefs require X, ergo they require I vote for a law that requires X." It's illogical and it's scary. I think posters before me already sufficiently ripped holes in that assumption, but I know as long as people believe that, we will have laws against things merely because the populace doesn't want the government to "endorse" them. Hopefully the Libertarian movement will exercise people of this "superstition" (as Buckley put it.. I can't believe a liberal such as myself is quoting him)
10.22.2008 8:29pm
Thomas J. Webb (mail) (www):
exorcise, not exercise. Ick
10.22.2008 8:34pm
Ariel:
wm13,

That is a good point. He wasn't talking about what he would do as a citizen but instead as a judge, so you are right. I could be wrong, but the way he said it made it sound to me like he was also implying that he didn't feel like it was something he thought should be governmentally decided. That could also be me reading my libertarian perspective into what he said.
10.22.2008 8:56pm
Oren:
WM13, a while back I tried to argue that Chicago's ban on foie gras fails to be rationally related to a legitimate government interest, so at least we agree there.
10.22.2008 9:04pm
R Nebblesworth:
I believe others have made similar arguments w/r/t Catholics. I can only sum up but it goes: 1) marriage is one of the Catholic sacraments; 2) the state doesn't enforce or regulate who is or is not baptized, confirmed, receives the eucharist, etc.; so 3) why single out marriage as the particular sacrament that the state should get involved in?
10.22.2008 9:05pm
brad:
BruceA's argument presupposes that it is possible to be halachically observant and participate meaningfully in a pluralistic democratic society.

I think that supposition is unwarranted.

In this specific case voting for gay marriage violates the prohibition against placing a stumbling block before the blind (lifnei iver).

First of all, it should be noted that male anal sex is prohibited to both Jews and Gentiles (under the laws of Noah.) Second the injunction against placing a stumbling block before the blind applies to assisting or tempting Jews or Gentiles to sin (see Nedarim 62b.) From this we can see that anything that would assist or tempt man - Jews or Gentiles - to have anal sex is a prohibition of lifnei iver. If the status quo ante is a law which prohibits state recognition of 'marriage' between two men, what effect can changing that law be other than to give seeming endorsement or at least acceptance to homosexual relationships?

An observant Jew is forbidden to even set foot into a non-kosher restaurant, lest someone see him and assume the restaurant is kosher. What message does it send for an observant Jew to support additional rights or recognition for those who commit a sin halacha singles out in two ways - by forbidding it to Gentiles as well as Jews and by forbidding a Jew to transgress it even upon pain of death?

I'm sympathetic to the libertarian argument but at least in this case it is incompatible with halach. The only choices are to try move civil law towards halachaic law or abstain from participating in civic society altogether.
10.22.2008 10:50pm
ReaderY:
The relevant concept regarding Jewish views of what is required of a non-Jewish society to be considered just would be the Seven Laws of Noah. Law number 3 prohibits sexual promiscuity, and law number 7 requires laws and courts of justice to enforce the preceeding 6. The scope of Law 3 seems to be subject to variant interpretations. It appears to definitely include adultery and definitely exclude simple fornication. But it would seem a number of authorities include homosexuality in the list.
10.22.2008 10:54pm
AngelSong20 (mail):

Side note, I am not versed in Jewish teaching


And apparently not all that well-versed in Biblical teaching either, given your deficient analysis of what the Bible says about killing babies (a particular Psalm comes to mind), weapons (the Sermon on the Mount is quite relevant), and adultery (which among other things, presupposes marriage)...
10.22.2008 11:32pm
Oren:
Brad:

(1) You are wrong about the empirical effect of SSM on anal sex. By providing gays with the tools and recognition to create stable monogamous relationships we would decrease gay promiscuity and lower the overall rate of sinful behavior. Perhaps failing to provide SSM is really the stumbling block (or kicking the cane out, to stretch the metaphor) because we are tempting gay men to reject monogamous marriage altogether in favor of a party lifestyle?

(2) Government recognition of SSM is not an endorsement of homosexuality any more than registration/taxation of a piercing/tattoo shop is endorsement of body modification (absolutely forbidden by Lev 19). Attaching moral weight to the civic functions of government is a profound mistake because government policies must be unitary while moral judgments are infinite in number. Religious-ization of the political is just as destructive (to the religion and the polity) as politicization of religion. To demand that the government only endorse things in line with your religion is to ensure its destruction.

(3) Discouraging the sin of homosexual intercourse has very little to do with recognition and rights for homosexual individuals. Every major denomination has explicitly said that its disapproval of homosexual conduct can never be an excuse for denying homosexual individuals their due dignity (kavod habriot).
10.23.2008 12:24am
Waldensian (mail):

From this we can see that anything that would assist or tempt man - Jews or Gentiles - to have anal sex is a prohibition of lifnei iver.

Well, obviously.

I never ceased to be amazed at the unabashed absurdity of religious beliefs. Seriously, how do otherwise intelligent people believe this stuff?!?

Perhaps one could symbolically transfer the sin of anal sex to a chicken, by swinging the chicken around one's head.
10.23.2008 12:33am
Waldensian (mail):
ceased = cease. "Preview is my friend. Red wine is not conducive to typing." Repeat.
10.23.2008 12:34am
Oren:
For those that are interested, Steven Greenberg wrote a pretty good piece in Tikkun a while back.
10.23.2008 12:53am
Oren:
Waldensian here provides a neat counterpart to Greenberg's thoughtful commentary. Thanks for the contrast.
10.23.2008 12:54am
jddf07:
As a few comments have noted, under Jewish religious law, the relevant issue for non-Jews is the Seven Noahide Laws and specifically, whether homosexuality is prohibited by those laws. The relevant issue for observant Jews is whether they have an obligation to promote the observance of the Seven Noahide Laws among non-Jews, and if so, the parameters of that obligation and how voting for or against (or abstaining) the proposition affects that obligation.

I don't know how the above analysis would turn out (and perhaps reasonable people could disagree on that) but I doubt that there is any construct in which observant Jews are obligated to oppose (to use the analogies above) the First Amendment or state marriage laws. Those situations are distinguishable.
10.23.2008 12:57am
Ken Arromdee:
While it's not a widespread practice even among the ultra orthodox, there are Jews who practice it.

You'd sound more convincing if I hadn't already quoted Snopes.
10.23.2008 1:04am
Randy R. (mail):
Houston Lawyer: " However, there is a wide chasm between tolerating something and actively promoting it."

For some people, there is no chasm at all. For them, any toleration of homosexuality IS actively promoting it.

"From this we can see that anything that would assist or tempt man - Jews or Gentiles - to have anal sex is a prohibition of lifnei iver. "

Anything? Really? Then I guess Brad Pitt must be banned, because he sure does tempt me!
10.23.2008 1:20am
Randy R. (mail):
Query: Is allowing gay people to get married 'promotion' or 'tolerance' of homosexuality?

I can see if there are billboards on the road that say, "Hey Kids! Try gay sex -- it's the bomb!" That would constitute promotion of an activity.

But merely allowing gay people to live without harassment, fear of job loss, with equal treatment, and ability to get married? I don't see how that is "promotion."
10.23.2008 1:23am
brad:

(1) You are wrong about the empirical effect of SSM on anal sex. By providing gays with the tools and recognition to create stable monogamous relationships we would decrease gay promiscuity and lower the overall rate of sinful behavior. Perhaps failing to provide SSM is really the stumbling block (or kicking the cane out, to stretch the metaphor) because we are tempting gay men to reject monogamous marriage altogether in favor of a party lifestyle?


Promiscuity is not the issue. Halacha has no preference for monogamous anal intercourse over promiscuous anal intercourse. Besides which the halachic calculation is not an empirical one. If a Rabbi coming out in favor of state recognition of SSM, and that gave one homosexual Jew raised orthodox the courage to come out of the closet and seek out anal sex, the Rabbi would have perpetrated a great sin even if thousands of other, already openly homosexual men, slightly reduced the number of times they engaged in anal sex

From Steven Greenberg's piece:

Still, it appears to many Orthodox Jews that in the case of homosexuality there is little use for dialogue in the face of such a clear biblical prohibition. A number of my colleagues and friends want very much to respond compassionately to gay people, but feel compelled to remain loyal to what they see as the unambiguous word of the Torah.


It's a lesser form of the problem of the Amalakates, no matter how wrong it feels there is nothing to be done with the framework of halacha.

The conservative movement's so-called responsa on this issue are a joke. Better to take the reform position and reject halacha altogether.


(3) Discouraging the sin of homosexual intercourse has very little to do with recognition and rights for homosexual individuals. Every major denomination has explicitly said that its disapproval of homosexual conduct can never be an excuse for denying homosexual individuals their due dignity (kavod habriot).

I agree 100%. Any homophobia aimed towards celibate homosexuals is completely unacceptable.
10.23.2008 1:24am
JoshL (mail):
Hoosier's original response was perhaps more correct than he is aware, since at least for Jews (leaving aside sheva mitzvot bnai noach), the punishment is supposed to be the same for anal sex as for sex with a niddah.


It's a lesser form of the problem of the Amalakates, no matter how wrong it feels there is nothing to be done with the framework of halacha.


Not really, since the framework of halacha has generally written out the problem of the Amalekites (that after the mixing of the nations there is no way to know who is actually an Amalekite, and therefore an "Amalekite" is one who would attack the Jews at their weakest for no reason, and the commandments about Amalekites refer only to that individual and not to their children).
10.23.2008 2:03am
Waldensian (mail):

Waldensian here provides a neat counterpart to Greenberg's thoughtful commentary. Thanks for the contrast.

I'm not sure what to make of this sideways gratitude. So lets get down to brass tacks.

As a starter, I think kapparot is totally, utterly stupid. That even by the standards of religious beliefs, it is laughably absurd.

Do you disagree? If so, how about some "thoughtful commentary" explaining why I'm wrong?

In truth, I must confess that kapparot is not inherently more stupid, than, say, the belief that Jesus Christ is our Saviour. Dump sins on the chicken, dump sins on the carpenter -- same basic idea, actually.
10.23.2008 2:08am
BruceA (mail) (www):
Brad makes a clever argument. Essentially, he argues that the prohibition against male anal sex is in a different halachic category (serious violation, Noachide laws, stumbling block) than the other examples I gave. Accordingly, he argues, a traditional Jew could still use halahca as a guide, oppose laws that proscribe those other things, but favor a law that restricts gay marriage.

There's several responses.

Oren attacks the minor premises of this argument. Allowing same-sex marriage would not increase male anal sex, would promote more stable relationships, etc. I think these arguments are right. But reasonable people might argue that it conveys some sense of societal approval, no matter how much we disagree, and thus there might be a reasonable dispute about the empirical effect.

I would respond with a different argument. Wouldn't the rule against placing a stumbling block before the blind also apply to all laws taht permitted unethical conduct. For example, wouldn't eliminating the the substantive requirement that defamation be a false statement of fact (and thus not be true gossip) prevent at least one potential l'shon hara statement? If so, isn't failing to modify this law placing a stumbling block (or at least not removing a stumbling block) before the blind? Note that l'shon hara is frequently compared to murder; the response to this argument cannot be that such gossip is a minor infraction.
10.23.2008 2:41am
Jay Myers:
BruceA:

I assume that your Christian beliefs require giving charity. But I assume that you would oppose a law that mandated charitable contributions.

But we already have such laws. They go under the labels 'welfare' and 'medicaid'. Obama used a quote from the bible about being our brothers' keepers to justify his plans to create even more such laws. Shouldn't you be opposing Obama's attempt to impose his religion on the rest of the country?
10.23.2008 2:55am
Oren:

The conservative movement's so-called responsa on this issue are a joke.

Thanks for mocking my religion. I'm out of this thread.
10.23.2008 10:52am
Aaron Denney (mail):
Christopher Phelan: Yes, Some states already have civil unions, which grant nearly the same direct benefits as marriage. However, there are tons of other places in both federal and state code that grant special consideration only to those that are married. All of those in the state could be fixed by the state, but a far easier patch is to merge civil unions into marriage. In addition, the civil union status is useless under federal law, and the state can't directly do anything about that.
10.23.2008 10:54am
Visitor Again:
Brad wrote:

Any homophobia aimed towards celibate homosexuals is completely unacceptable.

Am I going too far in reading this as at the very least implying that homophobia towards sexually active homosexuals is not completely unacceptable?

Brad also wrote:

From this we can see that anything that would assist or tempt man - Jews or Gentiles - to have anal sex is a prohibition of lifnei iver.

The gay people I know need no assistance in this regard. Nor do they need to be tempted. They just go ahead and do it all by themselves. But I must admit I have encouraged them to do it and applauded them for it. It's good for the health, both mental and physical, provided safe sex practices are followed. And I have engaged in heterosexual anal intercourse, which your construct of lifnei iver seems to say is also prohibited.

What business does anyone have telling nonJews that we are in violation of some religious code to which we do not subscribe? I had thought previously that at least the Jews were above this. What arrogance. The same goes for Christians and the members of any other religion who purport to proscribe and prescribe for everyone.
10.23.2008 11:10am
Plony ben Plony:
As others have noted w/r/t Noachide laws, homosexuality is an area of halacha in which Jewish tradition has specifically commented in relation to wider non-Jewish society. For example, a midrash says that one reason HaSham destroyed the world in the flood is that the generation of the time wrote ketubot (marriage contracts) betwee men.

As to the Conservative tshuva permitting gay relationships, Oren shouldn't take so much offense at it being called a joke, since one of the major Conservative Rabbis basically said the same thing in his own tshuva on the subject and resigned from the Conservative law commission, as did several others, b/c of it.
10.23.2008 11:17am
brad:

Thanks for mocking my religion. I'm out of this thread.


To paraphrase the latest Reagan quote going around, I didn't leave the Conservative Movement it left me. When I was growing up in the CM - sure we didn't pay too much attention to some Minhag and we ignored some of the stringency imposed in the modern era by Rabbis obsessed with building fences around fences around fences around the law.

But no one ever dreamed of claiming the authority to set aside a direct biblical prohibition. Is JTS really claiming to be equivalent in authority to the Tannaim meeting in Sanhedrin?

A Shabbat service in conservative synagogue would be completely unrecognizable to any Jew who lived more than 25 years ago.


Brad makes a clever argument. Essentially, he argues that the prohibition against male anal sex is in a different halachic category (serious violation, Noachide laws, stumbling block) than the other examples I gave. Accordingly, he argues, a traditional Jew could still use halahca as a guide, oppose laws that proscribe those other things, but favor a law that restricts gay marriage.

Actually that is not my argument. Anal sex is a particularly stark example of a conflict between being an active participant in democracy and following halacha, but as you point out participation in other arenas also present problems.

My conclusion is that halachic Judaism is not a reasonable comprehensive doctrine in the Rawlsian sense. (http://www.wku.edu/~jan.garrett/ethics/matrawls.htm#rcd)

That leaves one with two options: a) abandon, or modify beyond recognition, halacha or b) refuse to participate in a pluralistic democratic society.
10.23.2008 12:01pm
Michael B (mail):
"A Jew who follows traditional halacha would oppose same-sex marriage, gossip, non-halachic opposite sex-marriage, and non-halachic opposite-sex divorce. But if that person supports a law outlawing same-sex marriage because it would violate halacha, but would not support a law outlawing the rest, he or she must come up with a theory (at least to himself or herself) explaining the difference."

Well, yes, though it is no less true for a person of conscience that a valid theory needs to be developed whether the vote is yea or ney. It's not a one-sided obligation; responsibility and conscience necessarily inheres to both sides of the debate, both sides of the vote. There is no mindless or thoughtless default position.
10.23.2008 12:03pm
Hoosier:
From this we can see that anything that would assist or tempt man - Jews or Gentiles - to have anal sex is a prohibition of lifnei iver.

The gay people I know need no assistance in this regard. Nor do they need to be tempted. They just go ahead and do it all by themselves.


I guess I don't understand gaydom very well. But don't they need a partner?
10.23.2008 12:11pm
wm13:
"My conclusion is that halachic Judaism is not a reasonable comprehensive doctrine in the Rawlsian sense. (http://www.wku.edu/~jan.garrett/ethics/matrawls.htm#rcd)

That leaves one with two options: a) abandon, or modify beyond recognition, halacha or b) refuse to participate in a pluralistic democratic society."

Isn't there a third choice: participate in pluralistic democratic society, but not on terms or in a manner of which John Rawls would have approved? For myself, I could bear the strain of doing something without John Rawls's approval (especially if I had God's).
10.23.2008 1:40pm
Oren:

Is JTS really claiming to be equivalent in authority to the Tannaim meeting in Sanhedrin?

Absolutely not. They are superior in authority to the Tannaim because they speak for the newest generation of Jews, those that will bring it forward into the next generation. Judaism is a religion of the living, not the dead.
10.23.2008 1:43pm
Happyshooter:
Absolutely not. They are superior in authority to the Tannaim because they speak for the newest generation of Jews, those that will bring it forward into the next generation. Judaism is a religion of the living, not the dead.

I am missing context here. It looks like something important is being discussed, and I don't have the background data I need to understand the point.

As a guess, the current authority can override the older rules because they adapt the faith for changing times?
10.23.2008 1:51pm
Oren:
I should amend my previous statement (it was far too rash). I have an unbounded respect for the sages and commentators of Jewish Law -- if it weren't so, I wouldn't bother with them at all. It is incumbent on the Jews in every generation to learn about what has come before them.

Now, that said, previous generations have no claim of authority to bind future Jews to their particular interpretation. No such power is granted in the Torah (in fact, quite the contrary, the Torah obliges to us to obey the judges in our day, not the judges of yesterday). The only authority that I ascribe to the sages is contained in the power of their words to convince those of us in the present of their correctness. Where the sages are convincing, they are binding -- where they fail to convince, their words are empty. Judaism is a religion of reason, not force. We do not teach our children "do as I say or else", we teach them "do as I say because what I say is correct".

Consistent with this deference, every generation of Jews has unlimited authority to reinterpret the faith according to their views. Judaism was created for the benefit of man, not man for the benefit of Judaism. Those subordinate the needs of living, breathing Jews to the dictates of the long dead have inverted the relationship and altogether missed the purpose of faith, having apprehended only the details and none of the spirit.

That leaves one with two options: a) abandon, or modify beyond recognition, halacha or b) refuse to participate in a pluralistic democratic society.

Or accept a dynamics, living halacha that is (prudently!) modified to reflect a changing world. From what authority do you derive the notion that halacha is a static entity?
10.23.2008 2:03pm
BruceA (mail) (www):
Brad makes a really interesting and odd argument: halachic Jews may be precluded from participating in democratic societies. I had not thought of this possibility before, and it intuitively seems wrong.

Perhaps one way of avoiding the problem is to acknowledge that government compulsion is not always the best way of persuading people to take moral actions. To return to my gossip example, it would be a perfectly reasonable position to believe that (1) gossip is wrong, (2) American law should not penalize gossip, and (3) individuals and small communities should dissuade people they know from gossiping. (In fact, that is my position.) So a Jew could still be committed to the idea that gossip is wrong, but the specific means of implementing that is persuasion, social pressure, and education, not government compulsion. I think the same argument applies to homosexual behavior: even if you oppose it, government coercion is not the best means to enforce this belief.

Michael B correctly notes that everyone needs a theory to justify or explain votes. Correct, and I have argued that the little-L libertarian theory is such a theory.
10.23.2008 2:04pm
Oren:

As a guess, the current authority can override the older rules because they adapt the faith for changing times?

Pretty much. In the bible, the daughters of zelophehad petition for the modification of certain biblical rules. The first time, Moses checks in with God, who okays the change. The modified rule, however, is also found to be wanting but this time, Moses modifies it on his own authority but it is written that his words were "on the mouth of God". That is to say a man modified a law that came directly from God.

What we learn from this story (at least what I was taught) is that when we are confronted by a rule that leads to an unjust outcome, even if that rule came directly from God himself, we are empowered to modify it to better reflect the situation on the ground.
10.23.2008 2:12pm
Oren:

Perhaps one way of avoiding the problem is to acknowledge that government compulsion is not always the best way of persuading people to take moral actions.

And, as a corollary, the absence of government restriction on X is not an endorsement of X.
10.23.2008 2:13pm
Ben S. (mail):
Oren said: "Very well put. For those of that consider human freedom as unbounded except for the small slice we surrender to the state such arguments always come off wrong. Government authority is limited to those things required for the orderly pursuit of liberty."

Does this not shed some light into the gay-marriage debate? We must keep in mind that the campaign to allow gay marriage in CA is not a campaign to eliminate laws which criminalize homosexuals who cohabit and hold themselves out as married people. Rather, this is a campaign to force the government to grant them a marriage license.

So while homosexuals should have the right to live as they please without the government prohibiting them from doing so, that is not the precise issue. The issue is whether the government must take the affirmative step of sanctifying their union with civil recognition. While your excellent comment, Oren, speaks to the former, I think it loses much of its force when we are dealing with the latter.
10.23.2008 2:59pm
brad:

As a guess, the current authority can override the older rules because they adapt the faith for changing times?


Actually under the Orthodox worldview the exact opposite is true. The Orthodox believe that at the time Moses was given his five books (Torah or written law) he was also instructed in how it should be interpreted (the Oral Law.) He then passed this knowledge on to the seventy princes of Israel who passed them on to thier desendants and so forth and so on until the time of the Talmud.

Like a game of telephone the message got garbled, which is why the Rabbis at the time of the Talmud reluctantly decided to write down the 'Oral Law'. Because of this set of circumstances those from an older generation are presumed to have a more authentic version of the oral law to work with, and one generation may not overthrow a definitive rule made in another generation, except in certain exceptional circumstances.

This is the exact opposite of the interpretive philosophy Oren apparently believes is appropriate, and which he strangely justifies by paraphrasing Jesus! (Compare "Judaism was created for the benefit of man, not man for the benefit of Judaism." &"And [Jesus] said to them, 'The Sabbath was made for man, and not man for the Sabbath'")

--
BruceA

To return to my gossip example, it would be a perfectly reasonable position to believe that (1) gossip is wrong, (2) American law should not penalize gossip, and (3) individuals and small communities should dissuade people they know from gossiping. (In fact, that is my position.)


In order to believe this wouldn't you have to believe that government persuasion not only doesn't work, but is counterproductive? After all 2 &3 are not mutually exclusive, aren't both more effective at preventing gossip than either alone?
10.23.2008 3:17pm
brad:

Brad makes a really interesting and odd argument: halachic Jews may be precluded from participating in democratic societies. I had not thought of this possibility before, and it intuitively seems wrong.


The idea is not original to me. Several haradi groups have more or less come to this conclusion.

Think about it this way. Could a halachic Jew be the absolute monarch of country and govern in a way that permitted what is forbidden even to gentiles? Allow the import of idols into the nation for example? (Again see Nedarim 62b.) I don't think he could. In a democracy we all have a little piece of sovereignty and so we are in the same position as that king.
10.23.2008 3:27pm
BruceA (mail) (www):
Ben S wrote "The issue is whether the government must take the affirmative step of sanctifying their union with civil recognition."

That quote illustrates my point. The government should not, and cannot, be in the business of "sanctifying" anything. That is solely the domain of religious groups.

Brad asks, "In order to believe this wouldn't you have to believe that government persuasion not only doesn't work, but is counterproductive? After all 2 &3 are not mutually exclusive, aren't both more effective at preventing gossip than either alone?"

The initial question should be whether there is a sufficient reason for using government (which is the only institution that can legitimately use force to back up its decrees). And in the absence of external harm, I see little or no reason to involve the machinery of government.

To take a trivial example, but one that illustrates the point: I think people should have cake on their birthday, but I would oppose a law that mandated this.

Moreover, there are several reasons why a government ban or use of force might not be warranted, even if one gets over the initial threshold. Most importantly here, there are people who disagree with the moral position in a fundamental way. If we as a society start using government to impose our moral beliefs on others (again, in the absence of external harm other than moral offense), it will lead to bad results. We are all better off with a "live and let live" attitude. And as Jews (the perpetually oppressed minority), we should be quite wary of this concern.

Government compulsion also eliminates moral choice and personal dignity. A law fining people for not saying "thank you" at appropriate times might get more people to say those words, but they would deprive the speaker of the opportunity to feel and express real gratitude. And such a law would treat people as morally incapable people (somewhat like children, who are in fact told to say "thank you" at appropriate times as part of their moral training), thereby de-dignifying these adults.

I think the same applies here. If homosexual conduct is a sin or moral mistake, a moral being should nonetheless be given the opportunity to make that mistake --- or choose not to make that mistake --- without government compulsion, or even government influence. Other social institutions which do not have the power of the sword should be exerting that sort of influence.
10.23.2008 3:39pm
Oren:

Could a halachic Jew be the absolute monarch of country and govern in a way that permitted what is forbidden even to gentiles?

Depends on the alternatives. If abdicating the throne would lead to civil war and bloodshed, I would say he is required by Jewish law to rule.
10.23.2008 4:21pm
Oren:
Brad, you are going to have a hard time explaining the evolution of inheritance law in Numbers 36 according to your static-and-unchanging halacha. Moses set forth one law, then changed it, then changed it again -- perhaps you could enlighten us on why he did so?
10.23.2008 4:23pm
brad:
I'm confused as to your point.
From http://www.mechon-mamre.org/p/pt/pt0436.htm

And Moses commanded the children of Israel according to the word of the LORD, saying: 'The tribe of the sons of Joseph speaketh right.

This is the thing which the LORD hath commanded concerning the daughters of Zelophehad, saying: Let them be married to whom they think best; only into the family of the tribe of their father shall they be married.


Granted it seems that the G-d had given Moses a different rule prior, but a) it can be seen as moving from the general to the specific and b) G-d is certainly allowed to change his mind.

Are you claiming divine intervention in the JTS process?

"And there was no other prophet who arose in Israel like Moses, whom the Lord knew face to face ..."
10.23.2008 5:16pm
Hans Bader (mail):
Bruce Adelstein's argument makes sense to me. Gay marriage seems like a good idea in any event in principle -- if monogamy is good for straights, why not for gays?

And in practice, there won't be much fiscal effect for society as a whole -- the marriage penalty and the social security penalty will offset what gay married couples receive in reduced death taxes. (Heaven knows I haven't received any net financial benefit from the government in exchange for marrying).

And gay marriage isn't needed for the disturbing parade of horribles predicted by the opponents of gay marriage to occur -- civil unions are already sufficient for them.

The church that may lose its tax exemption is in New Jersey, which has civil unions, not gay marriage.

And the California Supreme Court's Koebke v. Bernardo Heights Country Club already allowed private institutions to be sued for not treating gay civil-union couples the same as married straight couples, even before gay marriage became legal in California.

Proposition 8 supporters, instead of trying to ban gay marriage, instead should have put on the ballot an initiative that would have protected the tax exemptions of churches that refuse to perform gay marriages, and -- as South Africa did when it legalized gay marriage -- created an exemption allowing state marriage celebrants to decline to perform such marriages if doing so is repugnant to their conscience.

That proposition would have been more useful in protecting religious freedom, and would have been easier to pass than Proposition 8, since it would have been supported by a coalition of not only social conservatives (who support Proposition 8) but libertarians, moderates, and true civil libertarians (who will vote in large numbers against Proposition 8).
10.23.2008 5:30pm
Randy R. (mail):
Brad: "If homosexual conduct is a sin or moral mistake, a moral being should nonetheless be given the opportunity to make that mistake --- or choose not to make that mistake --- without government compulsion, or even government influence."

Good point. And if you substute "God" for "government' in the above, you will have a good explaination of what free will is all about, which in my opinion is one of God's greatest gifts to humans.
10.23.2008 6:01pm
Oren:


Granted it seems that the G-d had given Moses a different rule prior, but a) it can be seen as moving from the general to the specific and b) G-d is certainly allowed to change his mind.


God was consulted for the first change but not the second -- the second time Moses changed the law on his own initiative. The first time was the word of God, the second time was "according to the word of God" (al pi adonai). Compare Numbers 27:

So Moses brought their case before the LORD 6 and the LORD said to him, 7 "What Zelophehad's daughters are saying is right. You must certainly give them property as an inheritance among their father's relatives and turn their father's inheritance over to them.

with Numbers 36:

5And Moses commanded the children of Israel according to the word of the LORD, saying, The tribe of the sons of Joseph hath said well. 6 This is the thing which the LORD doth command concerning the daughters of Zelophehad, saying, Let them marry to whom they think best; only to the family of the tribe of their father shall they marry.

(Emphasis mine, of course).

So we have a situation in which a man changes the explicit word of God (having just heard the words directly from the source just a few chapters ago!) in order to prevent an unjust outcome. Even more importantly, even though the third rule is manifestly different from the first, Moses says that nevertheless, this is what God commands. His revision, in other words, is still accorded the authority of God even though he has obviously changed the meaning from what God himself promulgated a short while age.
10.23.2008 6:05pm
Michael B (mail):
Bruce,

Out of curiosity, would you mind briefly articulating in what sense you're a small 'l' libertarian, and not a large 'L' Libertarian? For example and at a practical political level, I'm wondering how you'd frame the school voucher issue or, more problematically, a conception of federalism applied to the abortion/right to life issue. If you don't mind, thank you.
10.23.2008 6:05pm
Oren:


Proposition 8 supporters, instead of trying to ban gay marriage, instead should have put on the ballot an initiative that would have protected the tax exemptions of churches that refuse to perform gay marriages, and -- as South Africa did when it legalized gay marriage -- created an exemption allowing state marriage celebrants to decline to perform such marriages if doing so is repugnant to their conscience.


I thought such protections were already codified as a matter of Federal 1A law, e.g. Dale v. Boy Scouts.
10.23.2008 6:20pm
Anatid:
Out of curiosity, at what point did "homosexual conduct" become synonymous with "anal sex"? To the best of my knowledge, there's a specific prohibition on the latter, but a great deal of other behavior lies in the former that is not prohibited. A substantial number of homosexual men never engage in anal sex at all. Does Judaism have any objection to them?
10.23.2008 7:27pm
BruceA (mail) (www):
Brad - I have a detailed post on the Daughters of Zelophehad story explaining how is reflects an evolutionary view of halacha. It is here.

Hans - how's it going. (Hans and I worked on a CA Supreme Court amicus brief (with some help from Eugene) in Aguilar v. Avis Rent-a-Car about a decade ago.)

Michael B asked, "Out of curiosity, would you mind briefly articulating in what sense you're a small 'l' libertarian, and not a large 'L' Libertarian? For example and at a practical political level, I'm wondering how you'd frame the school voucher issue or, more problematically, a conception of federalism applied to the abortion/right to life issue."

As I understand it, Large L refers to the party; small L refers to a general libertarian point of view. I see a larger role for the government than the Libertarian party does, but smaller than many other people do.

School vouchers and I are old friends. (I debated extensively in favor of both Prop 174 (in 1993) and Prop 38 (in 2000) here in California.) I'm not sure exactly what you are asking in terms of framing the issue, but as I see it, the arguments for compulsory education and government funding of education are compelling. Given that, school vouchers have numerous practical advantages over a system of purely government schools. I'm probably missing something in your question.

I'm not sure I understand what you are asking in the abortion / federalism question either.
10.23.2008 7:49pm
John D (mail):
Ben S. claimed:

this is a campaign to force the government to grant them a marriage license


And he is mistaken.

If he characterized Marriage Cases as an attempt to force the government to grant marriage licenses to same-sex couples, I'd have to agree. I might object over the word "force," but it's substantively true.

Prop 8, on the other hand, is


a campaign to force the government to deny [same-sex couples] a marriage license


The California government is happy to grant marriage licenses to same-sex couples. There's support for that throughout the California government. The governor, the legislature, and the courts are all in agreement here.

A group of private citizens have their own idea about what California should allow. This puts them at odds with governor, legislature, and courts.

Currently, they are the ones who are attempting to get their way over the objections of the state. It changed quickly; you have to keep current.
10.23.2008 8:34pm
Michael B (mail):
Bruce, thank you, I was curious.

For the record, I'd agree a large "L" Libertarian could be considered one associated with the Libertarian Party. Though when I use the term large "L" Libertarian I'm more simply thinking of someone who is much more decidedly ideologically Libertarian than someone who might be libertarian as pertains to some issues, but is not an ideological Libertarian in a more overarching, primary or absolute sense. But thank you.

"A group of private citizens have their own idea about what California should allow. This puts them at odds with governor, legislature, and courts." John D

Yes, it's that pesky "We the people ..." part of the U.S. Constitution. Isn't there some way that can be redacted, perhaps via the courts, at least on a selective basis?

And what's with the "private" qualifier? It's as if you're intending to denigrate or marginalize the full gravity inherent in their status as citizens.
10.23.2008 8:50pm
ReaderY:

"The sheet with the hole is a myth, isn't it?"

No. While it's not a widespread practice even among the ultra orthodox, there are Jews who practice it.


Hate to break this, but you can always find Jews who practice almost anything imaginable. Not terribly different from most religions. The existence of an anecdote does not create a rule.
10.23.2008 9:19pm
ReaderY:

"The sheet with the hole is a myth, isn't it?"

No. While it's not a widespread practice even among the ultra orthodox, there are Jews who practice it.


Hate to break this, but you can always find Jews who practice almost anything imaginable. Not terribly different from most religions. The existence of an anecdote does not create a rule.
10.23.2008 9:19pm
ReaderY:
Anal sex within heterosexual marriage is specifically permitted, based on a Talmudic passage. Sephardic authorities interpreted the passage as a general rule to mean that essentially any sexual practice is permissable (sunject to certain other specific restrictions), but medieval Ashekenazic authorities regarded the passage as a special leniency limited to its specific context, anal sex. One of the changes in the last couple of generations is that many Orthodox Ashkenazic authorities came much closer to Sephardic view and, among other things, to regard oral sex as permissable within marriage whereas a couple of generations ago they still held it wasn't.
10.23.2008 9:30pm
JoshL (mail):

A substantial number of homosexual men never engage in anal sex at all. Does Judaism have any objection to them?



ReaderY's comment above covers within a heterosexual marriage. In a homosexual context, it might have an objection to non-Jews, though I'm not aware of one.

Amongst Jews, it would have an objection due to the lack of fulfillment of the positive commandment of Pru U'Rvu (be fruitful and multiply). There could also be an objection based on lifnei iver (stumbling block in front of the blind), as mentioned in middle of the comment thread: that is, explicitly permitting other homosexual actions would make it much easier to stumble into male/male anal sex.
10.23.2008 10:00pm
Hoosier:
I love reading the learned debates on Jewish law here on VC. I learn so much from this, and it is inspiring to see so many intelligent people who take their religion's teachings seriously enough to argue about them.

Thanks.
10.24.2008 1:09am
Michael B (mail):
"Michael B correctly notes that everyone needs a theory to justify or explain votes. Correct, and I have argued that the little-L libertarian theory is such a theory."

Yes, though as your conception of large L′ and my conception of large L″ Libertarianism differs, from this point of view you're suggesting a large L″ view.

For example and by contrast, my own more basic views can be typified as Classical Liberal and conservative together with some notable libertarian strains. Hence, as applied to the current issue, I take this extensive essay by Prager into full account since it reflects foundational aspects of my own thinking on the subject and in fact more fully substantiates and documents that thinking than I have. By contrast, to reflect upon another example noted herein, a proscription against gossip would not (of course) rise to a level requiring formal, legal articulations - the exception would be if "gossip" were to include libel and slander.

(Or perhaps you'd choose a small l′ and small l″, that's fine too, but I was more simply looking for a way to distinguish three levels rather than two.)
10.24.2008 4:26am
ReaderY:

A substantial number of homosexual men never engage in anal sex at all. Does Judaism have any objection to them?


In December 2006 Conversative Judaism split on the subject, adapting two diametrically opposed views.

The more liberal view was essentially the above: Only male-male anal sex is prohibitted, and gay sex is fine as long as male parties agree not to engage in male-male anal sex.

The other view held that a broader class of homosexual acts continue to be prohibitted to Jews.

Both views were passed as majority opinions, one member of the law commmittee voted for both, who said that his vote was consistent with a philosophy of pluralism.
See here and here.

Both views held that a non-Jewish society is not required to prohibit homosexual coduct. Given the Conservative Split, it would appear that more liberal and perhaps most members of Modern Orthodox Judaism and the traditionalist wing of Conservative Judaism have roughly equivalent views that homosexual acts are prohibited to Jews but not non-Jews, with traditionalist Orthodox Judaism holding that homosexuality should be prohibited by any society, liberal Conservative Judaism holding that homosexuality should be esessentially unrestricted (with a few winks and nods to technical prohibitions), and anything to the left (Reform, Reconstructionist, etc.) going the whole route.
10.24.2008 12:55pm
Randy R. (mail):
REaderY:"Conservative Judaism holding that homosexuality should be esessentially unrestricted (with a few winks and nods to technical prohibitions), "

I'm not a jew, nor do I have any knowledge of these laws. However, I think that your use of the phrase "technical prohibition" might be a bit loaded or distorting. If a prohibition is 'technical' then why is it so important to follow it? Or isn't it? What's the difference between again technical prohibition and a subtantive one?

Again, I plead ignorance, but I think a lot of people might find issue with that. Correct me if I'm wrong.
10.24.2008 4:02pm
Randy R. (mail):
Curious: Is there any explaination as to why anal sex between men is prohibited, but anal sex between opposite sexes is okay? What exactly is the rationale? If the difference is that it's okay between married people, then why not a married gay couple?
10.24.2008 4:05pm
brad:
They deal with two separate injunctions. The male male anal sex prohibition comes from "Though shall not lie with man as though lie with woman for it is an abomination." The male female anal sex prohibition is derived from the prohibition on spilling one's seed on the ground. ("Onan knew that the offspring would not be his; so when he went in to his brother's wife, he wasted his seed on the ground in order not to give offspring to his brother.")

--

Re: Daughters of Zelophehad
Thanks for pointing this out Oren &BruceA, I'm going to read up on it and the various commentaries. I definitely think there are some fundamental paradoxes that arise from the intersection of halacha and liberal democracy (outside the land of Israel which has its own deep conceptual issues.) I wonder if there is any English language literature on the subject.
10.24.2008 4:51pm
Hoosier:
Randy R.
"Curious: Is there any explaination as to why anal sex between men is prohibited, but anal sex between opposite sexes is okay?"

Because in the former case, it's a guy, and *another guy*.

Geez, Randy. Even *I* know that. You must be new to this whole "homosexual thing," huh?
10.24.2008 5:21pm
ReaderY:
The relevant Talmud passage is Nedarim 20b,

:R. Johanan b. Dahabai said: The Ministering Angels told me four things: People are born lame because they [sc. their parents] overturned their table [i.e., practised unnatural cohabitation]; dumb, because they kiss 'that place'; deaf, because they converse during cohabitation; blind, because they look at 'that place'...

:R. Johanan said: The above is the view of R. Johanan b. Dahabai, but our Sages said: The halachah is not as R. Johanan b. Dahabai, but a man may do whatever he pleases with his wife: Meat which comes from the abattoir, may be eaten salted, roasted, cooked or seethed; so with fish from the fishmonger.

Note: The Medieval sage Maimonides attempted to resolve the tension between this leniency and the interpretation of the Biblical passage of Onan as follows:

A man's wife is permitted to him. Therefore a man may do whatever he wishes with his wife. He may have intercourse with her at any time he wishes and kiss her on whatever limb of her body he wants. He may have natural or unnatural sex, as long as he does not bring forth seed in vain. (Mishnah Torah Issurei Biah 21:9)

The basic liberalization of the last generation or so is a greater acceptance of the view that acts which generally tend to strengthen the marriage and generally lead to the couple having children are not necessarily "in vain" as long as the couple endeavors to have children over the general course of the relationship.
10.24.2008 6:36pm
Oren:
Once again, Maimonides proves to be at least a few centuries ahead of the rest of the world.

Randy, the biblical prohibition is explicitly about lying with a man as you would with a woman. No explanation is given, that's the Law.

My personal, very highly heretical, view is that the particular passage was added sometime after the first transcription of the Torah in order to explicitly differentiate the Hebrews from their Greek and Persian neighbors. That's really conjecture though, and I freely admit that it has no bearing on the technical analysis.
10.24.2008 9:49pm
ReaderY:
Now, that said, previous generations have no claim of authority to bind future Jews to their particular interpretation. No such power is granted in the Torah (in fact, quite the contrary, the Torah obliges to us to obey the judges in our day, not the judges of yesterday). The only authority that I ascribe to the sages is contained in the power of their words to convince those of us in the present of their correctness. Where the sages are convincing, they are binding -- where they fail to convince, their words are empty. Judaism is a religion of reason, not force. We do not teach our children "do as I say or else", we teach them "do as I say because what I say is correct".

Put very simply, classical Judaism is based on revelation; rabbinic Judaism involves a combination of revelation and human reasoning. Classical Judaism holds that there is an oral law, and hence the views of the rabbis of the Talmud are regarded as being more than merely personal opinions. Within classical Judaism there is some room for differences of emphasis between the revelatory and rational components, as well as how flexible interpretation can be. But views that Judaism can be based on reason alone have been frequent, and generally led to their adherents giving up in frustration and looking elsewhere for inspiration.

The idea that everything can be based on reason is a rather quaint concept that seems to have lost some traction over the course of the 20th Century. It's now pretty clear mathematics can't be completely based on reason alone, and it's doubtful anything else can. As Bertrand Russell put it, he never found any satisfactory method to demonstrate by means of reason alone that his dislike of torture was different in some fashion from his dislike of broccooli, and he suspected that human beings' centruries of unsucessful efforts at such an enterprise should be abandoned as fruitless.

Reason doesn't help with such things without some sort of a priori material to work with. There's no rational reason why anyone should prefer persuasion to force. It may come from some sort of divine source, there may be some sort of innate moral law people tap into from time to time, it may be evolutionary conditioning, or it may just be a matter of preference or habit.

Most philosophical ethics simply involves axiomatizing ones preferences. But there's no reason to prefer one set of axioms over another. Reducing to axioms and theorems can lead to new insights about ones existing beliefs but it doesn't teach one anything inherently new. It's simply a way to systematize and examine what one already knows. Ones knowledge has to come from some other source.

I understand that saying there has to something in the mix besides reason alone does not necessarily make a religious-law system based on revelation either correct or palatable. The issues involved can't be so easily resolved or dismissed. There is reason to be skeptical of revelation and inherited wisdom, but there is also reason to be skeptical of reasons or claims that particular results are based on wisdom. My general view, so far as theory of government is concerned, is that we shouldn't assume we know all the answers and that the other people don't have anything to teach us.
10.26.2008 12:09am
ReaderY:
What exactly do we mean by "reason" here?

In the Conservative Judaism discussion, the Nevins opinion was able to conclude that the Biblical prohibition doesn't cover oral sex by citing medieval authorities who held that oral sex is prohibited between married couples. If heterosexual oral sex is prohibited, then homosexual oral sex with a man is not sex done in the same manner as with a woman. (Under the view that the Biblical passage forbids to homosexuals only what it permits to married couples, the narrower the view of what is permissable to a married couple one can obtain, the more expansive the permission to a gay couple.)

The Roth opinion pointed out that the Conservative movement didn't otherwise agree with the medieval opinions taking a narrow view of permissable marital sex -- the Law Committee had found that oral sex is permissable to a married couple when such questions were first asked, finding the Talmudic permission for what a married couple can do to be very expansively worded and to mean what it said.

Joel Roth said in his resignation statement that a legitimate legal process limits the way one can use traditional sources. One has to look to sources to understand their meaning and to use them as guidance; one can't simply manipulate them. In Roth's view, this limitation includes adherence to logic. To say that an opinion is incorrect on its merits but then to use it for collateral purposes when one finds its conclusion collaterally convenient was not, in Rabbi Roth's view, a legitimate form of legal reasoning.

In Roth's view, the Nevins opinion was unreasonable because it did not reach conclusions from premises following a system of argumentation that adhered to rules. But in Nevins' view, the Roth opinion was unreasonable because the system of logic was (in their view) too constrained and the premises disagreeable to begin with.

The word "reason" clearly means something different to both people.
10.27.2008 2:00am