SCOTUS on Same-Gender: What It Means; What It Doesn’t

1) It is not true that five members of the Supreme Court conspired to do an end-run against the will of the public and the sense of the Constitution.

Well, maybe the Constitution, if you accept Justice Scalia’s remarks. What is certainly true, however, is that to the contrary, SCOTUS mirrored a new reality in public opinion, which came to embrace full marriage rights and recognition for gays. The Court did not impose this; it demonstrated the prediction of the gemara of a time in which leadership would follow rather than lead, where pnei ha-dor ke-penei ha-kelev. This means, according to some, that the dog that seems to be leading by running ahead of the person following at the end of the leash in fact pauses at every fork in the road, looking back to its master for direction. It was the American people whose attitude changed, with a rapidity that startled most of us. Five justices of the High Court, who might have moved more cautiously as they did in the past, were now free to find the will of the people within the Constitution. The people led here, not the Court.

2) It does not mean that Americans moved in the last few years to finally throw off the yoke of repressive religion, and opted for licentiousness, full personal autonomy, and a rejection not only of the yoke of Heaven, but of Heaven itself. That would be too simplistic.

What did happen is that more and more Americans saw a justice argument in granting marriage rights to gays. This justice argument was the only one they considered in some cases, or it trumped the countervailing arguments in others. In fact, most Americans never heard the opposing arguments, whose articulation by people like Ryan Anderson came years after the well had already been poisoned by same-gender marriage advocates.[1] What they did hear was the plaintive cry of gays for recognition, and right to enjoy families like everyone else, and they saw justice in this.

3) Obergefell v. Hodges does not mean the end of the nuclear family.

It does mean that those who champion it – still many tens of millions of Americans – must work harder, because they will be swimming upstream against a cultural current. They will have to be better prepared to demonstrate with arguments and statistics that the presence of two parents of opposite gender confers enormous advantage to a child, and that the commitment to a traditional notion of marriage – heretofore found only in synagogues, churches and mosques – is nature’s and society’s best method of ensuring that advantage.

It is crucial to keep in mind that shifts in popular opinion are not necessarily permanent. Popular mores can be ephemeral and changeable. (For example, support of full abortion rights has actually declined in recent times. This owes to the tenacity of those who opposed Roe v. Wade, and refused to relent. While not accepting their position, we ought to take a lesson from their playbook.) We should not give up, nor do we have the right to do so. We may have to consider new alliances with other groups of Americans devastated by the implications of this decision, and work with them as allies in winning back substantial numbers of Americans. In time, more and more data will come in about the long-term stability of gay marriages, and the effects that such marriages have upon children. We might get a substantial boost if that data supports our position on the importance of the real marital bond.

4) The Supreme Court decision will mean a rash of hostile actions by the Federal government against those who reject the notion of gay marriage.

It won’t. At least not immediately. That will require new legislation or new policies that extend anti-discrimination laws to include those who discriminate against the new-found right to marriage for all who seek it. That will take time, and it might very well be coupled with legislation that allows religious groups and individuals a way to honor their own conscience. In the interim, expect the LGBT crowd to finance more test cases on the local level that will challenge the right of providers to deny services to those whose marriage they cannot recognize, e.g. an observant caterer who refuses to provide food for a sheva berachos for a gay couple.

Then again, there is no assurance that it will take very long for the Federal government to seek such legislation or write such policies. This from Atlantic:

It’s unclear how this religious-liberty claim might be interpreted in light of Obergefell; this is one of the “hard questions” that will be raised by the Court’s decision, Roberts writes, and “there is little doubt that these and similar questions will soon be before this Court.”

The other example Roberts specifically calls out is the tax status of religious organizations that wish to discriminate on the basis of sexual orientation. This was a question that came up during oral arguments for Obergefell: Alito raised a 1983 case involving the evangelical Christian Bob Jones University, which had refused to allow interracial dating on its campus. The Court ruled that the school could not be tax exempt if it maintained its ban; the university accepted the consequences, not changing its policy until 2000. The question, now, is what will happen to the many, many religious organizations that don’t support homosexuality, let alone gay marriage. This involves everything from stated policies—“for example, [when] a religious college provides married student housing only to opposite-sex married couples,” Roberts writes—to issues of employment and benefits for employees in gay unions.

Finally, individual church leaders—and judges—will face decisions about whether to perform and recognize gay marriages. In June, North Carolina passed a law allowing judges to refuse to issue marriage licenses altogether if they object to same-sex unions on religious grounds. This law may only be the beginning. “In our society, marriage is not simply a governmental institution; it is a religious institution as well,” Thomas writes. “It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

5) If we do our job properly and push for religious-conscience exemptions, we will be out of the woods.

This, alas, is patently false. The greatest impact that Obergefell will have upon us will have nothing to do with tax-exempt status and eligibility for Federal entitlements. As Justice Alito wrote, “Today’s decision … will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” The brunt of this decision will be felt by you and me as we walk down the street, soon to be stared at by our neighbors as if we were wearing KKK robes. A yarmulke will mean to the average American that the person wearing it is a primitive hater. Where not so long ago (before all the financial scandals and abuse cover-ups), being a frum Jew earned one a measure of respect (from those who were not anti-Semitic), it will now make us déclassé, outsiders. In the last few decades, those who wished navigated the various roads of American opportunity in a Lotus; the future may very well turn that into a ageing Corolla with one flat tire and two dead cylinders. We will become outsiders once again. Some will applaud this as a welcome reaffirmation of הן עם לבדד ישכון; others will find this the cruelest cut of all.

6) The SCOTUS decision was not one to stamp out traditional morality and values in America, although it might play a role in that.

It was, however, a terrible blow to all who believe that G-d reliably communicates his Will to man, and that He knows what He is doing. Those who find room in it for celebration or “mazal tov” wishes (invoking “It is not good for man to be alone”) demonstrate that their chinuch was never touched by the spirit of Chazal. They have no claim to the title “Orthodox.”

[1] The Rev. Bob Roberts, an evangelical friend of mine, told me that he was not unduly worried about the support of gay marriage by the younger cohort of his church. They had not, he insisted, rejected their belief in Scripture in the larger sense. They simply bought into the City of G-d/ City of Man distinction. They reasoned that it was not the place of the State to enforce religious truth. Rather, it is our job to teach it and share it. Others have argued that young religiously conservative people (Jewish and Christians alike) paid more attention to the argument that a group of people should not be denied something so very important to them – even if they were sinners. They were not giving up on the Bible, so much as putting a Biblical justice argument front and center.

I’m not sure that he should be solaced by this finding. When people begin to condition their acceptance of what they had previously accepted as the Will of G-d on whether they see that Will as just or unjust, G-d begins to become irrelevant. He becomes Love, or Beauty, or Truth – but ceases to be a Being, the ultimate source and immediate cause of all existence, Who also communicates His dictates to Man. It might very well be that the simplistic argument mentioned above is more attractive than the truth – that religious conviction has been subverted by the notion of personal, autonomous morality, in many cases by people not even realizing that they had changed the contours of their belief system more than they had bargained for. Rejecting G-d but maintaining a sense of Who it is that is being rejected might be preferable to changing G-d into something that He is not – like a G-d who communicates only through an inner voice, rather than an external one that Man is bidden to hearken to. See Moreh Nevuchim, where Rambam argues that making false statements about the nature of G-d is worse than idolatry. See also Rav SR Hirsch on the primordial serpent.

If this analysis is correct, it will not be the first time in history that such a fundamental shift occurred. It is possible to read much of human history as an antagonistic relationship between two world views: the Hellenic, and the Jewish. (And you thought Chanuka was only about dreidels and latkes!) In the former, history is written by the hand of Man and his preferences; in the latter, nothing escapes the Hand of G-d. (I am indebted to Prof. Joshua Mitchell at Georgetown, whom I met at a recent Tikvah workshop, for this observation, which is my very poor telescoping of the subject of much of his work on political theory and theology.) America has opted for the former. It may swing in the other direction in the future.

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51 Responses

  1. Menachem Lipkin says:

    A cogent and fair analysis. Only this one line sticks out like a sore thumb,”Those who find room in it for celebration or “mazal tov” wishes (invoking “It is not good for man to be alone”) demonstrate that their chinuch was never touched by the spirit of Chazal. They have no claim to the title “Orthodox.”

    It’s gratuitous and adds nothing to your article. It merely plays into the current right-wing orthodox zeitgeist that sees a need to oust people from orthodoxy at the drop of a hat (literally). I rarely see calls from this camp to oust those from orthodoxy who commit truly egregious sins against actual people or whole hold truly vile positions on various issues. We’ve come to expect this type of rhetoric from many, not from you.

    Further do you honestly believe that someone, who maybe misguidedly in your opinion, is so sensitive to another’s pain as to feel some sense of joy at their release from that pain as to truly never have been touched by the spirit of Chazal? I know that you don’t believe Chazal to be a monolith of fire and brimstone, nor do I think you believe orthodoxy to be, well, so orthodox as to not allow for the occasional lapse of a feeling of humanity.

    [YA – Reb Menachem, this is old stuff. Yes, horrible stuff happens on the right (and should be vigorously condemned and resisted), but it is not systematized and turned into a shitah. OO is a shitah, and it is a dangerous one, because with the collapse of the Conservative movement, something has to fill the void. The ignorance of YCT products is breathtaking, as is the hubris of members of its faculty. The feelings of compassion and humanity are not what are being resisted here. Those should be applauded. But you wouldn’t walk into a room of Ecstasy users and feel happy that they are in ecstasy. Your awareness of the damage they are doing to themselves would not allow you to feel that happiness. Anyone who takes Torah and Chazal seriously (rather than regarding them as “hurdles to be overcome” as the OO people are wont to say) can’t feel happiness at a Court decision that erases what the gemara in Chulin regarded as the saving grace of depraved societies. Sorry to disappoint you. I can be liberal about lots of things, as you know, but I genuinely believe that OO is chutz le-machaneh.]

  2. Moshe Shoshan says:

    Excellent piece. I would only add that both point about pnei hador kpnei hakelev at the beginning and the point about simplistic distortions of God at the end, were first raised to the best of my knowledge, by great rabbonim in the first part of the 20th Century, by R. Eliezer Silver and R. Kook respectively, not about the secular world and its leadership but about their contemporary charedi world and leadership. A God re-imagined in the image of contemporary conservative values is no less avodah zara than a God re-imagined in the image of contemporary liberal values. Frum Jews should not identify with “Red” America and its values any more than they should identitfy with “Blue” america and its values.

  3. Nachum says:

    Methinks you live in a bit of a bubble. Maybe in LA and NYC (not coincidentally, the places where most Orthodox Jews live) people are ga-ga over this ruling. Facts are facts, though, and such things have never passed an actual vote of the people anywhere in the United States, even in the most liberal of states. Maybe that should be taken advantage of, instead of defeatist attitudes such as “Well, this is what the people want.” Deep down, or not so deep down, people know what is normal and moral and what is not; they are, of course, intimidated into saying so aloud. Maybe the “primitives” who already wear their beliefs on their heads can even take the lead in the resistance.

    [YA – Three years ago, you would have been correct about the bubble. But the polls do show a reversal in many, if not most of the states you are talking about. Something did happen. You may be correct that people will return to sanity, especially after the social cost of weakening the family is discovered. (By that I refer to the Anderson/Girgis/George argument that the popular conception of marriage has shifted from the traditional one of creating a safe space for future children, to an entitlement, ensuring the availability of a lover and love object. As far as taking the lead – I’ll drink to that!]

  4. L. Oberstein says:

    I think that the basic fundamental change is that now American society believes that you and I have no right to impose our values on others. We are entitled to believe what we want but the definition of discrimination has changed. No longer do “we hold these truths to be self evident”. “Live and let live and no moral judgments” is the motto today. Especially,among the younger generation., you or I are not allowed to “judge” others for their behavior. Thus, acts that were considered reprehensible for millennia are now accepted as “ho hum”.
    “Gender equality” is a facile way of legalizing, indeed turning it into a civil rights issue, behavior that not only Judaism but humanity as a whole, has condemned for ages. Once this form of “marriage
    ” is a constitutional right,un-imagined by our Founding Fathers I am sure, the floodgate is open to many other variations on the theme, Rachmona Litzlan.

    The train has left the station on these issues. We cannot turn back the clock on moral relativity. The
    train has left the station. What we can do is determine our reaction. The knee jerk response is to have an asifa and have ancient rabbis condemn the modern world in Yiddish. That seems to be the weapon of choice by those who are leading the charge in our community. That will have as much effect as the ancient rule in Berlin seveal centuries ago,that anyone reading modern books could not live in the Jewish community, which was the rule when Moses Mendelsohn moved to Berlin. It had zero effect then and all the asifos and kol korei’s in Hebrew and Yiddish will not stop this earthquake. What should we do, that I will leave to wiser people than I ,but , trying to insulate our children from what is considered right and normal in the 21st century by everyone but us and an ever smaller segment of our non Jewish neighbors, just won’t work. “Mah Naaseh” I don’t know.

  5. ben dov says:

    “The Court did not impose this; it demonstrated the prediction of the gemara of a time in which leadership would follow rather than lead, where pnei ha-dor ke-penei ha-kelev.”

    The liberal justices believe in same sex marriage as much as the liberal public. They do not need cues from the kelev. And they are happy to impose it on the many citizens and state governments that disagree.

  6. מרדכי הלר says:

    Not one word about the threshold question of whether and why Orthodox Jews should continue to elect to live and raise their children in such a society and country? Why is clinging to America at all costs the starting assumption?

    [YA – Only because I tried limiting the piece to arguments that I felt were ironclad. I happen to agree with you – and lots of people will attest to the fact that I have been making the point quite vocally for some time. (Find me a suitable job and an affordable apartment in Rechavia, and I’ll be there faster than you think, BEH.) But there are people who still see more life to the community here, and I wasn’t going to divert attention from the main arguments.]

  7. Chaim Saiman says:

    While I agree with much of your analysis, I encourage you to think harder about point #5 (“A yarmulke will mean to the average American that the person wearing it is a primitive hater.”)

    Essentially your prediction (and Alito’s) is that being against gay marriage will be like being a KKK-styled racist. Maybe, לא נביא אנכי. But lets look at some counter examples. We are firmly opposed to intermarriage, which goes against every liberal values, yet there society seems to understand that its OK for a religion to discriminate against other religions on at least some occasions. Same for the fact that we do not hire gentiles to give gemara shiurim. We also have gender discrimination baked into halakha. There are of course many debates about this within Judaism, but the broader public (and certainly the law) seems to allow us to take a counter-cultural position without too much vilification over it. Note that when these issues do flare up they are at the extremes (agunah’s, chassidic women driving) rather than the very ordinary fact that a woman does not count for a minyan. We segregate ourselves, socially, educationally, and geographically, and are sometimes lauded, sometimes critiqued for it, but it does not rise to KKK levels of social ostracism.

    There are many reasons why these distinctions emerge but its surely not pre-ordained that SSM will fall on one side or the other. But— and here is the significant policy point— at least *to some degree* it is in our hands. How do we react to those who disagree with us? how do we react to those who are different than us? How do we interact with those whom we have least in common? If on every other front the frum community where a model of affirming the humanity of those least like us, I suspect people would recognize opposition to SSM as a principled stance rooted in faith that could be at least tolerated on the broader cultural sphere. But if we live in a community that is generally uninterested in the plight of the other, where a latent xenophobia swims below the surface, and where social justice has become a bad word, then the opposition to SSM will be seem as simply part of the culture of orthodox Judaism that others will feel justified in reviling.

    Like everything else, this is not entirely in our hands. But we can either play into the narrative that some want to tell about is, or we can confound it. That part is ממש בידינוּ.

    [YA – So happy you wrote this! I fully concur about the second point, of our own attitudes contributing to the way this will play out. You need to flesh this out into a larger piece and promote it.

    That said, I cannot be solaced by your first point. I don’t think they are comparable. I KNOW that they are not comparable. It is OK to maintain differences between Jews and non-Jews, largely because virtually all non-Jews do the same. Despite the visceral fears of some of our coreligionists who regard the words “Jewish exceptionalism” with the same horror as buying retail, we must disagree. Lots of other groups maintain religious and emotional space devoted exclusively to people like them, or in the same denomination. A well-meaning Protestant will still be denied a communion wafer at a Catholic church. Fair-minded Americans will tolerate the same kind of exclusiveness from Jews, as long as we treat them fairly, and don’t deny them something they are really interested in.

    The SSM issue is different. For various reasons, pushing back at the LGBQT agenda – not just for marriage, but for full acceptance as an equally valid life-style – has been considered such a violation of PC, that now that SCOTUS seems to agree (although it didn’t), they are on a roll. They have the momentum; those who oppose them will likely become objects of scorn. While others don’t wear their opinions about SSM on their sleeves, we wear ours on our heads. ]

  8. Y. Ben-David says:

    I think American religious Jews are going to have to absorb the fact that this decision was an earthquake with massive ramifications, some of which might not be readily apparent.
    (1) This decision goes far beyond simply the American people deciding that they should be “fair” and accept the idea of “equality” for everyone. It must be remembered that just 20 years, such a decision would have been unthinkable and the behavior it is recognizing was considered by a majority to be a perversion. Thanks to a massive media propaganda onslaught, most of the American public was persuaded to change a view of things that is centuries old in just two decades. This shows the power of the media and the elite over the mass of the public.
    (2) It must be noted that those leading this campaign are much more radical than many people believe and have an agenda that goes far, far beyond giving certain people the right to “marry”. The irony is that many of the leading proponents scoff at the whole institution of marriage, viewing it as “Institutional rape” and the marriage document as nothing more than “a scrap of paper”. I am sure you have noticed that at all the parades many participants engage in blantantly obscene and offensive manner and have shirts and signs that proclaim this. These people are not merely interested in getting “equality” but they are interested in, as Dennis Prager says, overturning the whole idea of marriage, family and gender. Just look at what they are teaching in the “Queer Studies” or “Diversity” departments in today’s colleges and universities.
    (3) Although I find it odd that I have to state this in a blog dedicated to Torah Judaism, I have found in discussions with not a few Orthodox Jews don’t seem to understand that the ramifications of this far transcend the mere legalities and judicial consequences. We, as religious/observant Jews KNOW that the Torah condemns “giluy arayot” (sexual immorality) in the strongest terms. Traditional commentators such as Rashi and the RAMBAM have clearly stated that giluy arayot was a major factor in bringing about the Mabul (Flood) and the fall of empires. What the world outside of the Beit Knesset and Beit Midrash does has major spiritual consequences. Even modern historians have pointed this out (see David Goldman’s “How Civilizations Die” and Charles Murray’s “Coming Apart”).
    (4) As I said above, there are very radical forces present in the media and academia that have an agenda for a revolution that goes far beyond this latest decision. We have already seen attacks on Brit Milah and Kosher Shechita. IF religious people (Jews and non-Jews) are now going to be tarred as fascist bigots for opposing homosexuality, then other values held by us will also come under attack. Many of the same people who are pushing this revolution take a very dim view of Jews, Judaism and Israel, as Senator Bernie Sanders (a self-proclaimed “progressive Socialist) found out recently when he was accused on the national media of having “dual loyalty” because he is a Jew.

  9. Bob Miller says:

    With American culture and American esteem for the Constitution in free fall, all predictions about the effects of this latest disgrace are shaky. We could have push-back, we could have resignation and acquiescence, we could have basically anything. If this society is corrupted beyond repair, except by supernatural means, we can’t expect the government to function properly in relation to the citizen, including the Jewish citizen.

    The campaign of mis- and disinformation that led us to this pass aims to undermine all institutions, religious and otherwise, that refuse to be stooges of our ruling class.

  10. Shmuel says:

    Yishar Koach for this nuanced piece.

  11. Toby Bulman Katz says:

    “It was the American people whose attitude changed, with a rapidity that startled most of us.”
    There were very few states in which the people voted for legislators, and the legislators voted for laws, in favor of gay marriage. On the contrary, in almost every state (before this Supreme Court decision), gay marriage was imposed by judges AGAINST the will of the people. Where there were referendums, gay marriage was voted down almost every time. Then the courts simply overruled the people’s will.

    Until just a few years ago, the great majority of Americans were opposed to gay marriage. Even Hillary and Obama felt it necessary to lie about their true beliefs, and say they believed “marriage is between a man and a woman.” Of course like most liberals, they were termites secretly eating away at the structure of society.

    Only after courts across the land had made gay marriage a fait accompli — and after Hollywood placed loveable gay characters in every sitcom and drama — did popular opinion, especially among younger people, shift.

    During this same time period — a period of only a few years — the cultural elite in the media and academia, by universal agreement, made it a hate crime, even a thought crime, to express even the slightest opposition or doubts to the gay agenda. No, you can’t yet go to jail for it, but the utter social ostracism you face — akin to using the “N” word — forced all opposition underground. A large percentage of public school graduates of the last few years have literally never heard in their entire lives a single person expressing even mild disagreement with the gay agenda. So how could public opinion not have shifted?

    As an aside, you might ask why did liberals — especially gays — vote for Obama and donate such large sums to his campaigns, after he had said he did not believe in gay marriage? The answer is that they knew very well he (and Hillary) really did believe in gay marriage, and would work towards imposing it on the country, but they had to get elected first — and the country was not quite ready yet to elect an openly pro-gay marriage president.

    For a similar reason, they gave Obama a pass for attending Rev. Wright’s hate-filled black church for twenty years. They knew, or at any rate believed, that Obama didn’t really believe in Christianity and just had to go to that church in order to be accepted on the black political scene in Chicago. Likewise, Jewish liberals gave Obama a pass because they assumed he didn’t really believe in the anti-Semitic filth Wright was spewing, but just had to sit there for Chicago political reasons. I’m not saying Obama is a secret Muslim, either: he’s a Harvard man. In other words, he doesn’t believe in G-d except as a convenient prop at election time.

    Of course it is not only Democrats who hide their true beliefs. Republicans often do too. In coming elections, it will take increasing courage for a politician to even hint that he has any reservations at all about gay marriage or gay adoption or gay pre-emption of the public square or even that he has any reservations at all about forcing religious business people and even clergy to act against their own conscience. Most Republicans cower in fear of the NY Times, and I predict we are going to see a lot more cowering than courage in the coming Republican primaries.

    [YA – I find it interesting that in the few hours that this piece has been up, we have comments assuring us that nothing has changed at all (and it was the liberals and the judges that imposed their will on a resistant American people) and others telling us that the media and the left did such a good job squelching the opposition, that how could the opinions of people (especially younger ones) not change!

    I don’t buy the argument that we were all victims of the Hollywood-liberal cabal. They are a hugely important influence, but not the only one. Judging by media coverage of Israel, most Americans ought to be members of Hamas. Yet the popularity of Israel is still at a high point. That is because there are other influences, including churches, and people’s ability to think for themselves. Regarding SSM, most of those opposed were sleeping at the wheel, and preaching to the choir. That has to stop.]

  12. contarian says:

    The religious groups who were so opposed to same-sex marriage could not influence the debate during the past two decades. At the same time as they were condemning the evils of same-sex marriage, their leadership was doing everything in their power to shield homosexual child molesting perverts in their midst from discovery and prosecution. Holy Hypocrisy does not play well especially in the age of the internet.

  13. Rafael Araujo says:

    Rabbi Adlerstein,

    I enjoyed your comments. Here are a few of my own observations:

    1) I reside in Canada, whose Supreme Court allowed this a few years ago. What that Supreme Court of Canada decision meant was that a “light” went on for those opposed tooth and nail to traditional (read conservative) religions having any representation or influence on society and public policy to try and push religious conservatives into a corner. This provided the momentum for such a mindset to become mainstream.

    2) I believe it has become a rule of thumb that today, when homosexual rights collide with religious rights, religious rights get pushed to side. You will now see a lot of litigation by activists to attack religion and try to force religious conservatives to accept the homosexual lifestyle. Tolerance is no longer acceptable. Acceptance and inclusiveness is new goal of these rights activists.

    3) OO and those riding shotgun will now be under undue pressure to accept this, since OO’s modus operandi is to not fight but accept these changes. I don’t have any doubt they will move to full acceptance. My fear is that for the RWMO and Chareidi worlds, this will isolate them (me included) even more since we will now have religious persons claiming the title “Orthodox” who accept such changes. It will also be our greatest test to see that we don’t wilt under such focus and continue to buck societies downward moral incline.

    [YA – Regarding #3, you are probably correct. Besides a few YCT rabbis who praised the decision, a YCT student posted on FB today that as a result of all the upheaval, male homosexuality is now permissible! I’m not so sure that OO will be able to retain the second “O” for too long. They can do what they want, but the horse is out of the barn. The pushback has begun; there is a groundswell of resentment against the dismissal of Mesorah by OO OO will become a separate denomination, filling in for the late-lamented Conservative movement, now in the last stages of post-mortem twitching.]

  14. Dovid says:

    As Torah Jews, we must be saddened by this decision, for it shows the extent to which society has moved away from our ideal of what values societies should cherish. We should also be concerned due to what it might mean in limiting our own rights.

    However, seems to me that we must also acknowledge that other than to those who accept “Torah min HaShamayim” ie. that Leviticus represents G-d’s Law, little can be said how, within a rights-based society, this decision would not be moral and just .

    (I will leave it to constitutional scholars as to whether the decision is constitutional; I’m talking about morality and justice. And I DO acknowledge there are unjust and immoral consequences for those who DO share the biblical view, namely that they may not be able to refuse to service gay weddings, etc. However, I would point out that those making the constitutional argument (including those on the Supreme Court) also happen to be believers in “Torah min HaShamayim” ie. that Leviticus represents G-d’s Law.)

  15. Raymond says:

    The whole notion of gay marriage is a complete farce. In normal, healthy marriage involving one man and one woman, is is traditionally the woman who drags the man to the wedding altar. Men want to hang on to the illusion of being free, while women, who have much more sense when it comes so such things, does the man a favor by essentially compelling him to marry her. With gay couples, however, this healthy balance does not exist. And so it should not come as a surprise that among male homosexual couples, the cheating rate is 95%, for there is no woman their to put any restraints on either of the men. So the two of them marrying each other, is essentially a joke, as is their supposed relationship to begin with. As for lesbian couples, the very opposite is the case: they tend to have long-lasting, loyal relationships. In such cases, marriage is not needed to bind them together.

    Gay marriage has never existed in all of human history until now. So why this sudden push for gay marriage? Because after legally legitimizing the homosexual lifestyle, the next logical step in that process, is to gain full acceptance through the institution of marriage. The ones with such an agenda, really could not care less about the happiness level of homosexuals. Their real agenda is part of the larger agenda of those on the Political Left, namely a battle against G-d’s Torah. Practically ever step that the Political Left takes, just so happens to undo G-d’s Commandments. Had that been the case once or twice, that may have been just a coincidence, but not when it happens over and over again. If one carefully examins each of our Ten Commandments, which is, after all, a microcosm of the Torah’s 613 commandments as a whole, then one will see how the Left has opposed each of those Commandments in their march toward freeing our society from the yoke of our Torah. The Political Left is the ideological component of Amalek.

    Last Friday’s decision by the Supreme Court, led by Anthony Kennedy, is in a sense even more damaging to our society than Roe v Wade has been. Yes, abortion in almost all cases is an unspeakable evil, but at least those of us who realize that, have always had the option of simply not participating in such a cruel, barbaric practice. Not so with this case involving the legitimization of gay marriage. I have heard from reliable sources that there is now nothing to stop a gay couple from demanding that an Orthodox shul perform their gay wedding. If that Orthodox shul is truly a religious one, it has to refuse that gay couple’s request, on halachic grounds. That will cause that shul to lose its tax-exempt status, turning it into an ordinary business. And once that happens, then that shul will not able to favor any group or lifestyle over any other. Such shuls will have to perform gay weddings, have gay Rabbis, serve non-kosher food…in other words, that shul will have to go out of business. Same goes for kosher food stores and Jewish bookstores. Soon, we Jews will have to have our community functions run secretly in people’s private homes. This country will have become just like the old Soviet Union.

    I predict that future historians will determine that Roe V Wade plus this latest Supreme Court decision, were what caused the United States to fall. Our country will not have ended in a bang, but with a whimper.

  16. lacosta says:

    1— Orthodox/haredi mosdos have less deep pockets. it is unlikely that they will find the financial wherwithal to defend the inevitable lawsuits — that the undeniably most viscious of minority groups [that want not just equality or rights , but the complete obliteration of all who disagree with them] will surely target. a trans- shevabrachos at Ateres Itche ? maybe Ateres will have to close down…

    2— the same premise of pity for equality has created the absolutely brand new lady Orthodox Rabbis . the only difference is they don’t have Supreme Court sanction [maybe if they were transgender…]. on the other hand the Orthodox establishment , especially the OU , is reluctant to go after them. so has the OU paskened gay-no, women-maybe ? at least the aguda is consistent…..

  17. DF says:

    Though we are sometimes guilty of lumping all peoples and countries into one basket, they are, in fact, quite different. We are as different today from Victorian England and Eisenhower America, as we are from the Bushmen of Papua New Guinea. At long last, one understands what chazal meant when they spoke of Egypt descending to the 49th level of tummah. June 26, 2015, will be remembered – by historians, and by the writers of Hebrew kinnos – as the day in which the United States finally hit rock bottom.

  18. Dovid says:

    To the lawyers out there: Should it wish to do so, does the American legal system have a way of protecting both Same Sex Marriage and religion-based refusal of service by Orthodox-owned corporations?

    Is the problem that they are refusing service to a class rather than to an individual, for instance an Orthodox wedding band’s having the right to not perform at a mixed marriage, but not having the right to refuse to perform for a gay marriage?

  19. Reb Yid says:

    So I guess the 19th Amendment is only temporary, right? Because enough people finally at that juncture decided that women should have the right to vote–what an outrageous, revolutionary act. Surely, this was a historical aberration and an affront to all traditionalists.

    Gosh, if we could only go back to the days where women knew their place, and we could wave the Confederate flag while proudly whistling Dixie. Times were good (if we were white, Anglo Saxon Protestant and had some money, or at least some slaves).

  20. Richard says:

    Nachum – You’re not up-to-date: Maryland, Washington, and Maine (not to mention Ireland!) had referendums that approved of same sex marriage. Recent polling data has shown a surge in support for same sex marriage across demographic categories, particularly within the younger generation. The people who “know” that same-sex marriage should be illegal are literally dying. This will be a non-issue, except for within certain insular religious communities, in a very short time.

  21. tzippi says:

    lacosta, supposedly religious institutions are still safe. (At least this is what I’ve been hearing from many quarters.) What I have been wondering, and have yet to get an answer to, is what will the parameters of hate speech be? There may come a day when the very well-worded Agudah statement that appears next to this article will be considered hate speech.
    It’s possible that middle America, had they been given the chance to vote, might have voted traditionally. Thanks to secret ballots. In public, though, people will be hesitant to be other than supportive due to point 5 above. The marginalization that may well occur will be well beyond our being old-fashioned and “other” and this is really disconcerting.

  22. Daniel says:

    Same-sex marriage has been the law of the land in Canada for ten years. I am happy to report that vast numbers of yarmulke-wearing men continue to walk down the streets of Toronto without being stared at by their neighbors as if they were wearing KKK robes. I am also unaware of any frum florists, bands or caterers who have faced demands by gay couples to service their wedding, on pain of legal, social or other sanction — but I welcome any corrections on that front.

    If, however, you remain unmollified, perhaps you might counsel the Agudah to refrain from issuing statements that serve only to remind the public (whose opprobrium so concerns you) of how much we stand opposed to them.

  23. Bruce Adelstein says:

    Another good and nuanced post, although I think it conflates two idea that we Jews should want to keep separate.

    American law is not Torah law. And civil marriage is not religious marriage. We live in a pluralistic society, where most people do not agree with Orthodox beliefs. The general issue we face is how do we as diverse society live together. And there are basically two answers. We can either accommodate different beliefs and practices to the greatest extent possible, or we can allow majoritarian rule and control. As religious minorities, I think we should strongly favor the former approach, and celebrate its application, even in particular cases where some of us disagree with the application.

    The central Orthodox objection is primarily to same-sex sexual activity. But many people in America disagree and do not ground their sexual mores in Leviticus. How do we all live in the same society? The general approach in America is to allow people to act as they see fit so long as it does not impose a direct harm on others. (Judge Richard Posner has an excellent and more extensive analysis of this point, using JS Mill’s analysis of liberty.

    Kedusha is the central organizing principal in a Jewish marriage, but it has no place in a secular marriage. A secular marriage is simply a bundle of legal rights and obligations recognized by the state. Imagine what America would be like if the majority could impose its notions of “kedusha” or its secular equivalent on the minority. That’s basically the reason some people oppose circumcision (the secular “holiness” of the body). And I think most of us recognize this principle in other areas. Would any of us favor laws (1) fining people for speaking lshon hara, or (2) making it illegal for an American to practice a religion involving idol worship? I don’t see same-sex marriage as any different. We Jews should should be on the side of maximizing individual liberty in America, even in areas where it runs contrary to halacha. The Jewish response, if any is warranted, should involve private discussions and persuasion, not government action.

    On your point 3 (re the nuclear family), I think this decision strengthens the nuclear family, albeit in a less traditional way. Given that gays and lesbians exist, form couples, and adopt children, it seems heartening to me that many wish to enter into stable marriages rather than less stable “just living together” arrangements.

    [YA – I could not disagree more strenuously, Reb Bruce, even while fully embracing your central premise. Most of us do recognize that until Moshiach comes, Jewish interests in the Diaspora are best served by forms of government that guarantee individual freedoms, do not impose religious responsibilities upon anyone, and maximize the potential for diverse groups to live alongside each other. We get that. If JS Mill returns in a time-machine, some of us would rush to get him as the honoree at the next shul dinner.

    We express our dismay over this decision not because we wish to impose halacha on anyone, but because we believe that Hashem’s expectations and demands are not arbitrary. Male homosexual behavior is banned not only to Jews, but is on a very short list of sexual relations prohibited to non-Jews under the Noachide Laws. Jewish tradition is that G-d knows what he is doing, and at least a bit of His Will can be discerned in the way He formulates Law. The treatment of homosexual behavior in the Torah and the Talmud makes it clear that we can expect to see consequences – in this world, not just the next – of community-wide dysfunction when it is embraced as simply an alternative form of “love” as acceptable as the model on which G-d and Nature predicated the continuity of society. We do not expect to see gains for children by placing them in nuclear gay families, but the opposite. The Torah essentially is saying, among other things, that a child needs two parents who bring temperamentally different strengths into a relationship of lifelong commitment to each other, in order to maximize the attention and care necessary in nurturing the next generation. The data is already in, to some extent. (I imagine that Ryan Anderson’s new book (I pre-ordered from Amazon) will have more of the argument. Buy it and read it.) After watching how rapidly many male gay marriages are going to disintegrate, wreaking havoc with the lives of children, Americans will yet scratch their heads as to how they could have thought that they were doing children a favor.

    The situation was exacerbated here by the fact that it was clear to us in the run-up to the decision that this was not an issue of allowing individual freedoms. Sodomy laws either have been stricken, or are not enforced. Civil unions gave gays the monetary advantages given to married couples. Gays made it clear that they wanted nothing less than for Americans to see their behavior as absolutely as acceptable as heterosexual behavior. And the Court effectively ruled that denying them that recognition – again, NOT the rights and advantages associated with marriage – was immoral and barbaric. No American who takes G-d’s Word seriously can accept this, or celebrate this.

    Yes, there are other concerns as well that are more parochial, that I mentioned in the post: hostile litigation to force religious providers to act against their scruples; the possibility that we will all be regarded from now on as primitive racists. But in regard to the larger issues you raise, yes, we accept your central premise, but his was a special case. It calls for mourning for what American has become in its disengagement from tradition.

  24. Y. Ben-David says:

    Regarding public opinion polls-
    I have some doubt as to how reliable they are on emotional, hot-button issues like this one.
    Once the media and the elite decide it is politically incorrect to hold a certain position, a significant number of people are unwilling to tell pollsters or other people that they hold that position. A couple of examples was how the pollsters missed the significant shift to the Right of the voters in Israel and the UK in the recent elections, such that support for the Left is the more “politically correct” position. In fact, in Israel, the pre-election polls and the exit polls almost always underestimate support for the Right.
    In Europe a majority will say in polls that they hate Israel but they “like” Jews, because these are the politically-correct positions to state (i.e. they express their dislike for Jews by saying they hate Israel instead of saying it directly).
    I think this phenomenon may at least partially explain the shift in public opinion regarding the homosexual issue.

  25. Steve Brizel says:

    I concur with R Araujo in general and especially his Point #2-One cannot deny that the decision renders America legally on the same level as Canaan as described in Chullin 92b. Viewing such a lifestyle as in any way compatible with a Torah observant way of life should be rejected, as opposed to attempting to rationalize whether Torah observance is either consistent with being “A God re-imagined in the image of contemporary conservative values is no less avodah zara than a God re-imagined in the image of contemporary liberal values.” One cannot deny what the Torah states with respect to homosexual relations.

    The bottom line remains how the decision will be “enforced”, to paraphrase the reaction of President Andrew Jackson to a ruling by the Supreme Court-in those states where same gender marriage have never been viewed favorably and remain unfavorably viewed

  26. shaya says:

    Excellent analysis, as always. A few comments.

    While I completely oppose gay marriage, I don’t think it’s fair to say no one can be Orthodox and support it (or wish a mazel tov to those who can now get married.) Some people simply feel, wrongly in my view, that part of church-state separation means letting the majority rule when it comes to these matters.

    The problem is that while adult Orthodox believers may be able to compartmentalize their brains to an extent that they can be enthusiastic frum Jews while supporting or approving of legalized gay marriage, young people are unable to accept such contradictions. Convince a frum teenager that gay marriage is a constitutional right, and most of the time, you’ve also stripped him or her of their emunah in Torah Yiddishkeit.

    Thus, as you suggest, we need to communicate in a sensitive, rational and compelling way to our children and communities why the Torah does, and society should, discourage homosexuality by limiting marriage to opposite sex couples. Its effect on children is only the tip of the iceberg. It is well established the gay males tend to have many times the number of sexual partners than do straight males, and few gay marriages are actually monogamous (needless to say, this is a public health problem, which justifies discouraging homosexuality on these grounds alone). God doesn’t want to us to wallow in the uncontrolled fulfillment of our urges and impulses, but rather to limit them in order to dedicate ourselves to spirituality, to improving ourselves and the world. (Rav Hirsch’s commentary on the Torah provides some interesting thoughts in this regard.) Only male-female complementary of exclusiveness of traditional marriage, and then ban on pre- or extra-marital relations, achieves this. Imposing gay marriage on the states means that society has no way of discouraging homosexuality, and encouraging people with those desires to abstain, or even to moderate their behavior.

    Simply because the majority of the public (manipulated by pro-gay media and Hollywood and the lack of counter-arguments in the mainstream public sphere) approves of gay marriage now, that does not mean the Supreme Court has acted appropriately. Imposing something on the country, declaring it as a basic human right, even though no country in the world had it until the year 2000, is the height of judicial hubris. It is an act of judicial tyranny possibly worse than anything the Israeli supreme court (known as the most inappropriately activist high court in the world) has done.

    As you suggest, we should join with other traditional believers to go back on the offensive, systematically searching for and applying effective ways to win the public back to the traditional sexual morality of the Torah. It can be done.

    You’re right that some people will see a kippa and see a “hater.” But most people aren’t that politicized. A small fraction will presume that we’re bad people. If we make a kiddush Hashem, treating everyone with kindness and respect, we can play our own small part in winning the public back toward a belief in traditional religious mores.

  27. Shua Cohen says:

    > “Our country will not have ended in a bang, but with a whimper.”

    >> It is my pained opinion that the thinking behind this statement holds the key to Klal Yisrael’s undoing in the Diaspora of the 21st century. When even bnei Torah begin identifying the U.S. as “OUR country” (to the exclusion of Eretz Yisrael, which is universally rejected–by Yidden who should know better–as our ONLY proper domicile in this generation), then all is lost. All the agita with regard to gay-marriage is so terribly misplaced. WE ARE STRANGERS IN A STRANGE LAND! (Yes, I am yelling here). Massive cognitive dissonance has caused a self-inflicted amnesia with regard to this basic fact. We thank you, Ribbono shel Olam, for the “Eretz chemda, tova ur’chava”…NOT!

  28. Hershel says:

    As many others of certain religious inclinations, I first found the SSM ruling terribly disturbing and troubling. After giving it thought, I am now minimally at peace with what the Supreme Court ruled, as I think I better understand it.

    Until June 26 (and still for other parts of the world) the word “marriage” in its various forms (e.g., married, marry, etc.) carried a very broad set of definitions encompassing many meanings. What the Supreme Court did is to now very narrowly restrict the word “marriage” to solely a legal construct associated with certain legal rights and responsibilities. “Marriage” solely refers to a license much as a driver’s license, albeit a license for two people rather than one. Both these statutory licenses come with rights and responsibilities recognized and enforced by the American legal systems. And, that’s all the term “marriage” now means in the USA.

    We also have a concept some traditional groups of monotheists call “holy union”, others call “holy matrimony” and still others, other similar labels. All these labels refer to recognition of a very special, non-secular, relationship between a ‘man and a woman’. (Hereafter, all these different but similar labels will be simply referred to as “holy union”. ) The supreme court has rendered “holy union” mutually exclusive of “marriage” Let me explain.

    As of June 26, 2015 the terms, marriage and holy union can apply or not in any of four relationship combinations.

    A man and woman may be

    1. Statutorily “married”/licensed by the State AND in “holy union” with all the rights and obligations both these statuses obtain.

    2. Engaged in “holy union” via a traditional religious ceremony but decline to apply for a “marriage” license from the State (thereby giving up certain rights but enjoying others: think continued alimony checks for divorcees; welfare assistance; higher household social security benefits for widows and widowers, etc.)

    A couple (gender non-specific) may be

    3. Now legally “married” by virtue of a State license (with State enforced rights and responsibilities) but devoid of “holy union” via any religious traditions (and thus not enjoy the spiritual benefits of those traditions)

    4. In a relationship not endorsed either by religious tradition or State marriage license. There appear to be few if any holy or statutory rights or obligations for either party associated with these couplings.

  29. Yehoshua Friedman says:

    I believe that the trends in America will lead to continued economic and social decline as well as a very hard time for Orthodox Jews in the open marketplace, especially academia. The cost of Jewish education has gone through the ceiling and is headed for some other planet. The only answer is: Jews come home to Eretz Yisrael. If you name all the failures of our society according to Torah and other criteria, we are still ahead. If something is wrong in OUR country, Medinat Yisrael, with all its warts, come home and help fix it. If you still think America is your country, you have missed something.

  30. Rafael Araujo says:

    Daniel – I am also a born and bred Canadian and a lawyer. Here are some recent lower court decisions and provincial human rights tribunal decisions where freedom of religion is pitted against same sex marriage rights:

    This shows that accomodation of SSM has become a legal issue in Canada for those like us (I assume you are on the same page) who oppose SSM on the basis of halochoh. However, the US is a much more litigious society than Canada and such decisions will soon become the norm. I submit that there is real threat that activists will now launch a string of lawsuits to attack religious conservatives and their religious principles.

    As for the Agudah statement, this is consisent with the amicus brief they followed. Also, this is also head off any thoughts among the public that the inevitable position OO leadership will take on this decision is agreed upon by Orthodoxy Jewry, which is not. Finally, we should not cower in the face of public opprobrium and act “shahshtill” and not speak up about a decision that has weakened the moral fabric of our society.

  31. lacosta says:

    tzippi says —- supposedly religious institutions are still safe.

    all that means is your sanctuary won’t have to do a gay marriage. possibly means the rabbi can say what he wants, though his physical security [and of his property and family] is not assured. the vile Gay Lobby will doubtless go after the caterer, the band , the florist , the photographer. they will have to start going underground to safely allow this service. are we prepared for a new tzedaka— the GayVictim legal defense fund / the GayVictimPutOutofBusinessSupport fund …..

  32. Brooklyn Refugee Sheygitz says:

    “We are firmly opposed to intermarriage, which goes against every liberal values, yet there society seems to understand that its OK for a religion to discriminate against other religions on at least some occasions”

    That won’t last for very long. Clergy who refuse to perform intermarriage will come under attack as being racist and denying people their fundamental rights to dignity and liberty. Jews will be accused of racism and xenophobia.
    There are already whispers in open orthodoxy of “understanding” people who intermarry and that will very quickly lead to acceptance.
    But like in the Weimar Republic which had an even more liberal constitution than the United States including federal judicial review, when the social views changed and elected president began ruling more by presidential order, all the Jews were treated the same regardless of denomination. Even the rabbis who wrote the letter to the elected president saying they were loyal citizens of the state. And even the orthodox rabbi who wrote that traditional Jewish orthodoxy had traditional values in common with the ideology of the party of the newly elected president.
    How long do you think it’s going to take before scotus stops pushing back on presidential order? Five years? Ten?
    Tine to come home now….or at least make serious plans to get what’s left of the next generation home.

  33. Rafael Araujo says:

    Yehoshua Friedman – you talk about coming home to EY. I agree with your sentiment wholeheartedly. However, if you see what is being reported these days, SSM may soon become legal in EY. On this particular, being in Eretz HaKodesh would unfortunately be no different as living in Canada (l’havdil). Further, I don’t believe that increased Orthodox, including Chareidi aliyah, would stop the Israeli High Court from allowing it. As we see, OO type of approaches to gay rights are spreading in the DL world. Further, you just had a party as part of the previous coalition with Likud that had Orthodox MK’s yet was proposing legislation that would lead to SSM becoming legal. Its not as cut and dry as you make it out to be.

  34. Moshe Bulmann says:

    YA wrote:

    “Male homosexual behavior is banned not only to Jews, but is on a very short list of sexual relations prohibited to non-Jews under the Noachide Laws. Jewish tradition is that G-d knows what he is doing, and at least a bit of His Will can be discerned in the way He formulates Law.”

    Birchas Hashem is also on that list. Should we be lobbying for anti-blasphemy laws? According to halakha a ben noach who steals a shaveh perutah is chayav misah. Should we be lobbying for laws that make stealing a capital crime?

    [YA – No comparison. We didn’t – and wouldn’t – campaign for a law to change an accepted definition of marriage into one that is more of our liking. The definition was there, supported by thousands of years of history, 77% of the population 15 years ago, and every conservative church group in the country. We fought for the preservation of a concept of marriage that is central to the preservation of the nuclear family.]

  35. Bruce says:

    Your primary response to my pluralism argument was that same-sex marriage violates the Noachide laws and that there are real-world consequences to its violation:

    Male homosexual behavior is banned not only to Jews, but is on a very short list of sexual relations prohibited to non-Jews under the Noachide Laws. Jewish tradition is that G-d knows what he is doing, and at least a bit of His Will can be discerned in the way He formulates Law. The treatment of homosexual behavior in the Torah and the Talmud makes it clear that we can expect to see consequences – in this world, not just the next – of community-wide dysfunction . . . .

    There’s actually two arguments here. This claim could be premised on either the authoritativeness of the Noachide laws or the real and observable consequences of the violation of these laws.

    If the former, you still run into the pluralism problem. Some people in American do not accept the Noachide laws as a basis for American law. Thus, the question remains: how do we as a society live together when there are groups with varying social, philosophical, and religious beliefs and practices? My claim is the best way to do it is to maximize personal freedom where there are not direct harms to others. (A same-sex married couple in my neighborhood neither positively nor negatively affects my life, unlike people who steal, or drive recklessly, or make too much noise.) Your argument — we are right and they are wrong and this one is really important — does not convince those who disagree, and thus simply involves one group forcing their beliefs and practices on others.

    As I noted, I’m not sure that’s “good for the Jews” or any other religious minority. That approach can lead to all sorts of bad consequences, such as a ban on circumcision and other Jewish practices. Not a path we want to go down.

    I’m also not sure you would take this to its logical consequence. Would you favor a law outlawing religious practices involving idol worship? That too is a Noachide law. If not, what is the principled distinction.

    Your alternative argument involves the real-world observable consequences of same-sex marriage:

    We do not expect to see gains for children by placing them in nuclear gay families, but the opposite. The Torah essentially is saying, among other things, that a child needs two parents who bring temperamentally different strengths into a relationship of lifelong commitment to each other, in order to maximize the attention and care necessary in nurturing the next generation. The data is already in, to some extent.

    If this could be shown, it might have some merit. But it is a pretty risky place to ground an opposition. If the data showed that children raised in same-sex families are just as happy, adjusted, educated, productive, emotionally stable, etc., that would end the argument (at least this particular argument).

    And even if a same-sex family was suboptimal in some sense to an opposite-sex family, the ubiquitous economist’s question — relative to what? — still applies. Foster care? Not existing in the first place?

    There are a whole host of minor factors that make some marriages suboptimal relative to some perfect standard: parents who smoke, fight too much, disagree on fundamental issues, are not well educated, etc. And of course much bigger ones, like spousal abuse. But I don’t think that anyone would prohibit such marriages.

    Again, in the absence of compelling evidence of direct harm, maximizing individual liberties for people with divergent beliefs and practices is the best (only?) way to live together in a society.

    Well, at least we agree on one important issue: We would both honor JS Mill at our shul dinner. : )

    [YA – We apparently agree on essential principle. We both want society to guarantee individual liberties, and to stay out of the business of enforcing religious norms. We disagree about whether SSM is a special case. I believe it is, and not just because the stakes are higher according to the understanding of Chazal.

    I would not urge our community to seek the passing and enforcing of a law against idolatry. (WE both live in LA, and can imagine what the elimination of myriad gods and goddesses would do to the local economy.)

    SSM is different. While traditional Jews, Christians and Muslims all have religious reasons to oppose it, it is also true that a notion of the traditional family has a millennia-long history. That history may or may not be mired in a religious past. It really doesn’t matter. Courts have accepted that practices, holidays, etc can be originally sourced in religion, but come to have neutral secular value. When atheists are accused of being amoral, they frequently respond that they are free to look for ethical systems in a wide variety of places – including religious traditions.

    Until a handful of years ago, a clear majority of Americans strongly championed the idea of marriage being limited to a man and a woman. The law itself recognized a societal interest in the institution of marriage, which is why it incentivized it through tax advantages and the like. No one was pushing for a reintroduction of sodomy laws. Gays were not being denied the blessings of long-term stable relationships, or in most cases, even the monetary perks sometimes associated with them. Gays wanted America to say, “Ashamnu, bagadnu….We repent for implying that some kinds of relationships are normal, blessed, sanctified, etc, while others are only tolerated as live-and-let-live. We want respect, recognition, and most importantly, full contrition for implying that some old set of rules might interfere with our life style being seen as every bit as desirable as that of heteros.” This is NOT an issue of providing a “maximum of personal freedom” as you called it. They had the freedom. What they managed to do is remove freedom of conscience from the rest of us.

    You think that half a family is better than none at all? Please think again. Undoubtedly, this will be true in some cases. But you are not factoring in the adoption agencies that now will have to close. You are not considering the kids who would have been placed within a stable conventional two-parent family, and now will be given to something quite different. You are not addressing the future heartache of parents and kids who, because of what will be perceived as the High Court’s full embrace of not only SSM, but of homosexuality itself, will be confused enough during the crucial years of sexual identity imprinting to make some counterproductive choices. Perhaps most important is the fallout to all future generations, who will now be looking as a completely different conception of marriage than the one that worked – even if imperfectly in many cases – to sustain families. In that conception (and it was true in the vast majority of cases), a man and a woman would commit themselves to each other for the long-term, for the purpose of providing for the next generation. In the new conception, marriage is a Hallmark card sent to your current BFF, and meant to maximize personal pleasure. It is a privileged owed to me, rather than a responsibility thrust upon me.

    To sum up, I agree that a secular law system operating within a diverse society must allow maximum freedom of choice. The case of SSM is sufficiently different from all others.]

  36. Y. Ben-David says:

    Rafael Arujo-
    You don’t seem to understand that Israel is OUR country, our JEWISH country. The US isn’t. It is their non-Jewish country. In Israel we are arguing among ourselves about what the future direction of the country will be. In the US we have no input, no should we really. However, as the US continues to move in an anti-Torah direction, it will have negative consequences on everyone, including the religious Jews. Whereas in the US, all religions (except maybe Islam) are in decline, including the Fundamentalists, who 30 years ago seem to be in ascendancy. In Israel, the traditionalist and religious groups are in demographic, and, just as important, ideological ascendancy, as the old anti-religious Labor Zionism faces total collapse, as the recent elections illustrated. The Golden Age of American Jewry is coming to an and, just like all the previous ones did in their turn. It is time for American Jewry to face facts and realize that no-modus-vivendi with the anti-Torah-values forces is possible.

  37. Yehoshua Friedman says:

    Rafael Araujo – Yes, but it hasn’t happened yet, and the majority of the Israeli Jewish population is either religiously observant or traditional with the ultra-secular being only a small, vocal minority. If all of you would get over here, we would have a better chance of fighting it, and anyway, it it your land and my land and not the land of the Christians (may they live and be well) who settled and built it. Your future is where your past is! Hashem didn’t give us America, He gave us EY!

  38. ben yissachar dov says:

    great article, many true/valid/plausible responses. may i add:

    1) The difference between the US and Europe always has been a vague understanding that the Constitution, and society at large, is more or less grounded on Revelation (Torah, or call it what you will). OTOH, already for a while, Anti-Semitism has been Europe’s only connection to religion.

    2) The SCOTUS decision, by institutionalizing something explicitly counter to the Bible, has largely severed the connection. So we are on our way to becoming like Europe, all about utilitarianism and multiculturalism and very large government etc.

    3) Given the US’ ongoing demographic trends (declining white population; large growth among islamic populations and a scared/pandering media; younger cohorts whose family/culture/value systems render them far more malleable to anti-semitism (ie hollywood/international media/etc); ISIS control over the jail population) – this means that we are only a step-and-a-half away from the anti-semitic horror that Europe has become….

    4) What does this mean? I personally witnessed the near-complete destruction of Washington Height’s Frankfurt Kehilla, because its leaders were too paralyzed, already from the 1960s, to do anything about emerging local population, cultural, and intellectual trends. So many individuals who “got it” escaped on their own, leaving themselves lonely and directionless in Monsey/Teaneck/Paramus, and the community they left behind even more brain-drained. Nobody has been happy as a result. All attempts to reproduce Breuer’s elsewhere have failed.

    5) Bottom line: we and our leadership should contemplate, plan and execute a coordinated, large-scale population shift to eretz yisrael. Not for Zionistic reasons, but self-survival. This doesn’t necessarily need large scale announcements or campaigns, and will be pushed very far along by a communal understanding and admission that Golus America is over.

    Of course this is a crazy approach. but haven’t we seen this part of the movie too many times already?

  39. Toby Bulman Katz says:

    What I wrote on Cross-Currents three years ago:

    Here, for the record, is what our ancient Torah heritage has to say about homosexual marriage:

    The nations are allowed to continue in existence only because they keep a minimum of three mitzvos. These are: not writing marriage documents for the union of two males, not selling human flesh in the market place, and giving honor to the Torah—which in practice means, not persecuting the people of the Torah, the Jewish people.

    In one of his prophetic visions, the Navi (prophet) Zechariah took thirty pieces of silver and threw them into the Temple treasury in Jerusalem (Zechariah 11:13). The Rabbis of the Talmud had varying interpretations of what this vision symbolized. According to Rabbi Ulla (Talmud Chullin 92B), the thirty pieces of silver symbolized the thirty mitzvos that the Bnei Noach accepted upon themselves. These thirty mitzvos include not worshipping idols, not consulting witchcraft and sorcery, refraining from illicit sexual relationships, and so on. (Bnei Noach are the Sons of Noah, also called Noahides—i.e., the nations of the world.)

    Rabbi Ulla says that the world continues to exist because the nations accepted these thirty mitzvos. However, he adds, the nations do not keep all the mitzvos they accepted. They keep only three, and one of the three is: “They do not write a marriage contract for males.” Rashi comments that the nations do engage in forbidden homosexual relations, but they at least acknowledge that such relations are illicit by not formalizing those relations in legal documents.

    The other two commandments that they keep are that they do not sell human flesh in the market place, and that they give honor to the Torah (Talmud Chullin 92B).

    Elsewhere the Rabbis of old stated that the final decree of destruction, the Great Flood, was sealed against the generation of Noach because they wrote marriage documents for males. “Rabbi Huna said in the name of Rabbi Yosef, ‘The generation of the Flood was not wiped out until they wrote marriage documents for the union of a man to a male or to an animal ’ ” (Genesis Rabbah 26:5; Leviticus Rabbah 23:9).

    Implicit is the assumption that if the nations do not abide by at least the aforementioned three mitzvos, they may forfeit the very right to exist. Hence, these three—not writing marriage documents for males, not selling human flesh in the marketplace, and honoring the Torah—may be considered the Three Conditions for the continued existence of mankind.

    So you see, the idea of gay marriage is not new, not a fresh idea that represents the ultimate development, enlightenment and evolution of mankind. No, the formal marriage of two men is a very ancient idea that represents the degradation of mankind.

    I will add a further point to what I wrote in 2011:

    The reason the gay pride movement adopted rainbow colors as their symbol is that the rainbow is the sign of Hashem’s promise not to wipe out the entire world again in one big flood. They wave the rainbow flag in defiance of Him, as if to say, “Ha ha, You can’t touch us!” The message of the rainbow flag is, “We are major sinners, like the generation of the Flood.” But they are whistling in the dark if they think there won’t be consequences. May Hashem protect His people, those who are chassidei umos ha’olam as well as us, Klal Yisrael.

  40. tzippi says:

    Rabbi Adlerstein wrote in reply to an earlier post: “Civil unions gave gays the monetary advantages given to married couples.” Is that so? What about other privileges? If not, what a pity that it didn’t give fully equal rights back then.
    And lacosta, that was my point. The religious institutions and clergy may be safe but the service people won’t be.

  41. DF says:

    This is what fifty years of Godlessness has wrought. Who would have thought that the mere removal of prayer in the schools could have led the country so rapidly to this state of decline? Religious Americans today, Jew and non Jew alike, are in the position today of the prophets of old. We have reverted almost completely to the paganism of long ago, only instead of names like Kamosh and Ba’al, they have more complicated named like “Climatechange” and “Sexualgenes.” A thousand years hence, the theology of the latter will appear just as strange, and the methods of worship just as fantastic, as those of the former appear to us today.

  42. DavidF says:

    L. Oberstein writes:

    “The knee jerk response is to have an asifa and have ancient rabbis condemn the modern world in Yiddish. That seems to be the weapon of choice by those who are leading the charge in our community…What should we do, that I will leave to wiser people than I…“Mah Naaseh” I don’t know.”

    I’m not entirely certain what to do either, but perhaps one place to start is not to disrespect highly respected and venerable Torah scholars by referring to them as “ancient rabbis” who go around condemning others in yiddish…

    I can’t imagine anything good will come from demonstrating such a lack of respect for Ziknei Talmidei Chachomim who often are indeed “wiser than us” even if one disagrees with their method of choice.

  43. Y. Ben-David says:

    Regarding the intermarriage issue that Brooklyn Refugee brought up…..we should remind everyone that when Senator Joe Lieberman, who says he is an Orthodox Jew, was running for Vice President in 2000 , was asked about Judaism’s view on intermarriage he said something to the effect that Judaism had no problem with it. You see how the pressure to conform and to get votes forced him to say something he knew wasn’t true. Thus Brooklyn Refugee is quite right that pressure will continue to build up against the Torah’s views on that and ultimately everything that is not ‘politically correct’.

  44. Menachem Lipkin says:

    Rabbi Adlerstein, I understand, quite clearly, your issues with OO and YCT. However, the text I quoted from you was far too vague to indicate a direct attack on their “shita”. You merely referred to “those” who find room for “celebration”. And that is what I was responding to. I doubt you spend much time on Facebook, but my response had little to do with YCT shita and much to do with the reaction of a variety of rank and file orthodox Jews, who can by no means be tarred as having not been “touched by the spirit of Chazal.” and about them you are greatly overreaching in saying that these many, many well-meaning people “have no claim to the title “Orthodox.” And even your after the fact potch at YCT is an unwarranted broad side. Rabbi Yssocher Katz recently posted, “Theologically we accept the issur of homosexual sex while sociologically we support and embrace those in our midst who struggle with this issue.” Doesn’t seem like the words of someone who is disconnected from the spirit of Chazal to me.

    [YA – Reb Menachem. The snark was not meant for the countless people from all over the Orthodox continuum who have been asking for explanations about the wall-to-wall dismay with SCOTUS over the decision. You are entirely correct about FB. I spend very, very little time there. But even I knew about a particularly offensive reaction to the decision by a YCT person (it cited the pasuk lo tov heyos ha-adam levado) which went viral. My strong remark was aimed at that statement, and anyone who could think that way. As far as the reaction that you cite in your penultimate line, no, sympathy for the challenges of gay people is a good thing, and not foreign at all to the spirit of Chazal. But signalling the full acceptance of a gay life style by the Supreme Court in opposition to the gemara in Chulin is a sign of not being touched by the spirit of Chazal – or of having been at one point in life, and then moved on to replace it with something else.]

  45. DF says:

    A tremor has gone through America. Can you feel, in the air, that something is now different? That we have experienced one of those moments, in which the fate of a nation is decided? That a light, that had been flickering, sometimes flaring up with life and sometimes dying down, has finally gone out?

    Rabbi Adlerstein, I can FEEL this in the very air. Can you?

  46. Peter says:

    YA wrote:

    “No comparison. We didn’t – and wouldn’t – campaign for a law to change an accepted definition of marriage into one that is more of our liking. The definition was there, supported by thousands of years of history, 77% of the population 15 years ago, and every conservative church group in the country. We fought for the preservation of a concept of marriage that is central to the preservation of the nuclear family.”

    The nuclear family has been in decline for 40 years for reasons that have nothing to do with SSM. Has the legalization of SSM affected your marriage or those you know?

    The fact is that the majority of Americans support SSM and I have yet to hear a convincing *rational* argument to oppose it that does not appeal to vague dangers that there is no evidence have materialized. By contrast, denying equal rights to gays and lesbians inflicts *real, tangible damage* as thousands of gays can testify.

    The main argument against SSM is based on the Bible. For centuries Jews suffered from Christians imposing their Bible-based morality on us to discriminate against us. We opposed this by appealing to rational principles of justice and equality. I’m shocked by the short-memory and political stupidity of Jews who would forget this history and seek to impose religious based preference on those who do not share those beliefs. Do we really want to set this precedent?

  47. tzippi says:

    Peter, I don’t think your arguments are weak ones. Someone wiser than I may well point out that they’re not valid ones; I can’t take that on.
    But again, what is our attitude to this fait accompli? It can’t be unmitigated joy, not for halachic Jews, and I daresay others who are consistent in their religious world view.

  48. Hershel says:

    Many “facts” have been presented in the above comments, some based on questionable statistics, others on history or theology. These will continue to be argued by all sides to no final conclusion. In this matter, there is one incontrovertible fact: unlike other so-called “landmark” decisions by the Supreme Court (9-zip) this one was 5-4. The minority of 4 wrote many compelling arguments against the 5, a number of which were based on the role of the Supreme Court as developed by the founding fathers, deviation from their constitutional powers by the 5 justices, ignoring States’ rights/the rights of the ‘people’ and such, rather than statistics, history or theology.

    This ‘split’ decision hardly concludes the matter nor does it ‘heal’ the country about SSM, going forward. Expect the lower courts to become quite busy over the decision and the matter to again come before a different Supreme Court, perhaps one that will be less subject to PC and more adhering to its limited, constitutionally based powers.

  49. Alan says:

    Dear Peter,
    Your comment that the main argument against SSM is based only on the bible testifies only to the success that the left wing has had in stifling the debate. You might be fascinated to learn that opposition to SSM can be made in terms of secular or at least natural law. you might want to consider leaving “the well-lit prison of a closed mind” and examine some of the arguments. Try reading some of the works of Robert George or Ryan Anderson…

  50. Joseph P says:


    Your ask Peter to leave the “well-lit prison of his closed-mind” to examine the rational natural law arguments against SSM offered by luminaries such as Robert George and Ryan Anderson.

    So you have insulted Peter and then made an argument based on authority. This hardly bodes well for the rationality of your position.

    But please why don’t you illuminate our feeble brains with your brilliant natural law arguments against SSM so we can all escape our mental prisons.

  51. Steve Brizel says:

    When the SCOTUS engages in writing legislation off the bench, it is easy to view the same as constituting some of the worst decisions of the Court-Think about Dred Scott, the decisions that struck down social welfare legislation, and created “penumbras” of rights such as birth control and abortion in Bill of the Rights-this list has always been viewed as what legal scholars call “substantive due process” in which the SCOTUS substitutes its view of what the law should be for the legislatures-whether Federal and state.

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