By Rabbi Steve Greenberg - May 12 2009

During the Ontario Supreme Court case of 2003 that ultimately extended the rights of marriage to same sex couples, I was asked to offer an affidavit of my views. An Orthodox rabbi had presented a very strong opposing position. As I am the first openly gay Orthodox rabbi, the legal team sought my advice to perhaps balance the scale.

I was happy to support them. My argument was simply that marriage in religious terms could not be reasonably imported into the civil code without a violation of the separation of church and state and the abridgment of the basic rights of citizens. Same-sex religious ceremonies are no longer a shocking rarity. Synagogues and churches across the country have been celebrating them for more than a decade. As long as there is a reasonable minority of religious communities that celebrate same-sex marriage, the government, cannot exclude such unions from recognition. To do so would be a violation of the establishment clause of the constitution. Many couples, which from a denominational standpoint would not qualify for sacred matrimony in some synagogues or churches, are not barred from civil marriage. So, while Orthodox rabbis will not perform kiddushin (the traditional rites of Jewish marriage) for intermarrying couples, and while Catholic priests will not officiate at the remarriage of a divorced person, neither of these traditional limitations are injected into the rules of civil marriage.

Nor do these denominations lobby Congress to change the rules of civil marriage to accord with their particular notions of religious matrimony. They all understand that civil marriage is not really marriage in any religious sense. Yes, the notion of marriage has historically religious roots, which is the unfortunate historical reason behind the confusion.

Some religious voices have claimed that they are not urging the adoption of a religious framework, just a natural one. According to biologist Bruce Bagemihl, there are more than 190 species in which homosexual or transgendered behavior has been observed. Homosexual behavior is surely more common, but no less naturally occurring than say, left-handedness.

As well, it is important to remember that marriage has historically come in many different forms and has been shaped by variable rationales, economic arrangements, exclusivity rules, terms for establishment and dissolution. Jacob had four two wives and two concubines and a few Babylonian rabbis had day wives on their business trips. No, we don't do either anymore, but it demonstrates that there is no single unified historical model. Catholic priests were first able to marry, later not; Jews were always permitted to divorce; Catholics not.

The reasons that people marry have shifted over time. In the past people married for familial prestige, economic opportunity, political expediency, for children (meaning added hands for running the farm), for sex and sometimes even for love. It is enough to leave all this to individuals and their families and communities and let the role of government be simply to support all those who wish to employ the power of life-long commitment to sustain themselves and those whom they love. That, of course, is why the secular government is in the business of marriage in first place. Marriage knits together lives, makes total strangers into family and nourishes the sorts of commitment that help us to sustain each other in good times and in bad.