Defense Of Marriage Act

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.

Individual religious communities should remain in charge of their own definitions of sacred matrimony, but they should not be allowed to impose themselves any longer on the citizens of the country through the power of the federal and state governments.

There are presently three states where same-sex civil marriage is legal: Massachusetts, Connecticut and Iowa. This coming September, Maine and Vermont will be joining the list. Sadly, during the last election cycle, funded massively by the Mormon Church, gay couples were stripped of their marriages in the infamous Proposition 8. The television ads were mean-spirited and deceitfully played on people's fears regarding their children.

In time however, and likely by the next election cycle, the law that enshrines inequality in California will be stuck down. In time, the same powerful arguments that struck down the anti-miscegenation laws of Virginia will eventually bring down the shameful 1996 Defense of Marriage Act. The newly elected Democratic administration in Washington has been unnecessarily cautious, largely, because it fears the divisive and diversionary frenzy that has marked the culture wars of the past eight years. Clearly, there are severe domestic and foreign challenges facing the president that have legitimately drawn his attention. No matter. The courts will inevitably hear a case that marks the territory as clearly as it did in 1967 and will affirm our liberty in love as it did then.

We have a proud heritage of righting our prior wrongs, of ending slavery, of granting women the right to vote, of civil rights legislation. The Defense of Marriage Act's end is sure to come, and when it does no storm will shake the foundations. It will simply make fuller the promise of the constitution, that self-evident truth that in being all created equal, we are all entitled to Life, Liberty and the pursuit of Happiness.

Steven Greenberg is an Orthodox rabbi, ordained at Rabbi Isaac Elchanan Theological Seminary. Since 1985 he has served as a senior educator for CLAL, a think tank, leadership- training institute, and resource center. Rabbi Greenberg is the author of Wrestling with God and Men: Homosexuality in the Jewish Tradition, which won the 2005 Koret Jewish Book Award. He is currently rabbi-in-residence at two cutting edge organizations, Hazon, a leading Jewish environmental organization, and Keshet, a grassroots organization dedicated to LGBT inclusion in the Jewish community.