The Blessings of Freedom: Reflections on a Changing America
by Moshe Hauer
In 1812, as Napoleon and his Grand Arme̒e were approaching Russia, many Jewish leaders were eagerly anticipating their arrival, hoping that it would bring the liberty, equality and fraternity promised by the French Revolution, and with that some measure of relief from the persecution that was the Jews’ usual lot. Rav Shneur Zalman of Liadi, the Baal HaTanya, felt otherwise, hoping, praying and actively working for the Czar’s army to prevail. As he wrote to one of his disciples:
If Bonaparte will be victorious, Jewish wealth will increase, and the prestige of the Jewish people will be raised; but their hearts will disintegrate and be distanced from their Father in Heaven. But if Alexander will be victorious, although Israel’s poverty will increase and their prestige will be lowered, their hearts will be joined, bound and unified with their Father in Heaven. (Igrot Kodesh Admur HaZaken, letter #64)
In our own time in the United States, a gracious and generous society that grants equal rights to the Jews, Jewish wealth and prestige have grown and religious Jewish communities and institutions have flourished. At the same time, the fears of the Baal HaTanya have certainly been realized as well, as the openness of our society has led to rampant assimilation. Anti-Semitism killed us in Europe; in America we have been loved to death.
America’s freedom – and our fear of that freedom – grew recently, when the United States Supreme Court declared same-sex marriage a civil right. This decision was the final hammer blow in the ongoing effort to mainstream homosexuality as an alternative lifestyle within our society. As religious Jews working to raise healthy children in an over-sexualized society plagued by crumbling families, this latest development is a source of concern, not only for the challenges it poses to healthy sexuality and families, but to our core values.
Here are five core ideas that we need to reaffirm in light of last month’s ruling:
- I believe with a complete belief in the divinity and the immutability of the Torah.
This statement is a classic expression of the fundamental religious assumption of Orthodox Jews. It is a simple restatement of the eighth and ninth of the Thirteen Principles of Faith articulated by the Rambam. Belief in the divinity and immutability of the Torah is such that there is no new insight that will ever trump its word. And while there are behaviors or institutions allowed by the Torah – such as capital punishment, polygamy and slavery – that have been discontinued over time due to a variety of factors, foregoing an allowance or avoiding an obligation is a far cry from reversing a prohibition. And while we are constantly on the lookout for new insights into G-d’s word, as well as for new worldly insights that can help us better understand and navigate our world, the revealed word of G-d in the Torah is the ultimate last word.
The Court’s opinion is based on the discovery of new insights into the nature of homosexuality, and the implications of those insights on human rights. As stated in the Court’s Opinion:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Yet even an uncritical acceptance of those new insights would do nothing to change the Torah’s explicit prohibition of the homosexual act. While those who wrote and ratified the Constitution and Bill of Rights did not presume omniscience, G-d, the Creator, has nothing to learn from these new insights. He Who made us all, knows it all, and explicitly prohibited these acts for all time.
The Court’s assertion is quite a shock to the system, as expressed by Chief Justice Roberts in his dissent:
The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice”. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
The Talmud (TB Chulin 92a-b) similarly could not contemplate the specific change created by the Court.
The world accepted thirty commandments, but ultimately holds on to three: They do not write a Kesubah (marriage document) for homosexual relationships, they do not sell human flesh in the marketplace, and they show honor to the Bible.
And then there was one….
- A desire is not a mandate.
It is striking that the Midrash (Beresihis Rabbah 26:5) records one previous period where homosexual marriage was accepted:
The generation of the Mabul (Flood) was not erased from the world until they began to write marriage documents for homosexual and bestial relationships.
In a fascinating and prescient note on this Midrash, the nineteenth century commentator R. Zev Wolf Einhorn (known as the Maharzav) writes:
They mistakenly thought that as they were created with these drives and they have the power to satisfy them, they were obligated to follow those drives in whatever direction they propelled them. Thus they surrendered themselves to their drives, and proceeded to solemnize these homosexual and bestial relationships with the guidance of their judges and clergy.
Please understand: those in the Orthodox community – and there are many – who live with SSA (same sex attraction) and have no sexual interest in members of the opposite sex, face an almost incomparable struggle. Their life of commitment to Torah law comes with profound sacrifice, as they are forced to face life with their most basic drive unmet. Their struggle is constant, and can hardly be comprehended by those who do not face that struggle. Their struggle is lonely, as their nature is something they are not able to easily share. And their struggle is often misunderstood by those who would easily categorize someone with such a nature as immoral or uncontrolled. They would do anything not to be in this situation, and to be able to marry someone from the opposite sex and live a fulfilled and satisfying family life. But as they are they do not have the ability to do so. This is a huge challenge that must be profoundly appreciated and respected. And while a proper understanding of the struggle – and new insights into the struggle – are essential, they do not in any way reduce the Torah’s unequivocal prohibition of acting upon the homosexual urge. A desire – even an unchangeable and unquenchable desire – is not a mandate. Human beings demonstrate their humanity through the exercise of restraint and self-control.
As Chief Justice Roberts noted in his dissent:
Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” This argument again echoes Lochner, which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.”
Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.”
We must firmly resist the ethos of a society that elevates “the fullest individual self-realization” over the constraints that G-d has placed on mankind, and that transforms desire into mandate.
- The Torah is the ultimate champion and arbiter of compassion and human dignity.
It is a painful irony that the non-Orthodox Jewish community encouraged and applauded this decision, rendered by a court that includes three Jewish justices, all of whom sided with the majority. This is because this decision was made in the name of compassion and human dignity, core Jewish values. It is in our Talmud (JT Nedarim 9:4) that our Sages debated whether the greatest Torah principle is loving kindness or human dignity. And the exclusion of same-sex marriage – we are told – “demeans and stigmatizes those whose own liberty is then denied … and it would disparage their choices and demean their personhood to deny them this right.”
In a further appropriation of our core principles in the name of the cause of same sex marriage, the Court ironically bases its decision on “four principals and traditions”, including the uniqueness of the marital relationship, the safeguarding of children, and the family as the building block of society.
Here again we must stand strong and clear and reinforce for ourselves our confidence in the values taught by the Torah. Towards this end it is worth citing the Iggeret haKodesh (attributed by some to Ramban), who found himself defending the Torah from others who would claim the mantle of compassion, in this case the champions of vegetarianism. In response to their claim that a just and kind Torah could not allow for the slaughter of a living thing, the author set the premise for his response as follows:
Know that these are the foundations of our world: G-d is good to every creature, and merciful to all of his creations. Regarding this it is written, “G-d is good to all and his mercies extend to all of his handiwork.” This verse informs us that (if G-d sanctioned) the slaughter of living things to be eaten by people (it) is for the benefit of those living things and it is merciful and compassionate towards them.
This is a fundamental belief of ours: The Torah begins and ends with kindness; G-d built the world on kindness. The new insights of society have nothing to teach G-d about goodness and kindness. If the Torah forbids the homosexual act, it may be extremely difficult and painful for the individual struggling with SSA to fulfill that prohibition, but G-d’s word is undoubtedly the ultimate good.
And, while we are at it, given the state of the contemporary American family, it is unlikely that we would turn to the new insights gleaned from contemporary trends and values to discover what will make this bedrock institution stronger. Some confidence and pride in the relative strength of the traditional Jewish family is in order.
- A new world: Religious people can no longer claim the moral high ground. They may not even be able to claim any ground at all.
Woe unto those who call the bad good and the good bad, who make darkness light and light darkness, make the bitter sweet and the sweet bitter. (Yeshayahu 5:20)
Since long before the Court’s recent decision, the religious community has found itself on the defensive on matters of tradition, religion and morality. The new take on rights and liberties is such that our traditional religious values, instead of being seen as the source and basis for charity and goodness, are seen instead as oppressively upholding archaic restrictions limiting the freedom of life and expression of suffering people.
In the words of Justice Alito:
The decision will also have other important consequences.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
And from Chief Justice Roberts:
Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. These apparent assaults on the character of fair minded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.
And of course, now that same-sex marriage has been deemed a civil right, the issue above is not simply a matter of maintaining the good name of religion, but actually the right of its free exercise, as when that free exercise collides with civil rights, the civil rights win. As such, religious individuals and institutions who will refuse to participate in or otherwise include same-sex marriages and couples will face legal challenges that the LGBT movement is preparing vigorously to mount. Watch out.
We turn once more to Chief Justice Roberts:
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
- Be super-vigilant to safeguard our moral purity, and to improve the society around us.
When Bilaam’s attacks on the Jewish People were frustrated, he turned to the one method that he knew would be effective: He would compromise the morals of the Jewish people by having the women of Midian and Moav seduce the Jewish men. He knew this would lead on its own to the weakening and damaging of the Jewish People.
We are blessed to live in a country where we face – bli ayin hara – relatively little anti-Semitism. The decision of the United States Supreme Court is not part of some elaborate scheme to undo us. But the effects of a corrosive moral climate do not need to be intended to be effective. The Torah describes how in the days leading to the Mabul (Flood), even the animals cross-mated with other species, expressing some kind of infidelity that was simply absorbed from the polluted moral environment.
It is this issue that overwhelms, and that takes us back to the beginning of our discussion. Ultimately many who do not share our opposition to this decision will cite the precious freedoms that our country has granted us, and argue that we must offer those same freedoms to those who do not share our beliefs. While that presents a fair and serious issue, it cannot produce anything approaching a celebration of this court’s decision. First, we can hardly celebrate any society’s adoption of a practice that violates the basic code of morality prescribed by the Torah for all mankind. And second, we cannot be oblivious to the effect that the growing public presence of these practices is contributing to the moral toxicity of our increasingly sexualized society.
Rebbi uMori, my teacher and mentor Rabbi Yaakov Weinberg z”l, had many issues and differences with Chabad and its Rebbes. Yet it was he who first shared with me the wisdom of the concerns of the Baal HaTanya regarding the hazards of the freedom that Napoleon would bring to Czarist Russia. Consistently, he also found himself in agreement with a position articulated beautifully by the late Lubavitcher Rebbe, Rav Menachem M. Schneerson z”l, when it came to the issue of non-denominational prayer in the public schools. In response to the 1962 Supreme Court ruling declaring such prayer unconstitutional, the Rebbe wrote a lengthy letter describing the positive value such prayer would have, from a Halachic perspective. He concludes with the following sentiments:
I venture, however, to address myself also to the sentiments and imagination of everyone whose heart is alert to what is happening around him, and is especially sensitive to the problems of the growing generation, to view the problem as an image projected against the background of our critical time. In our present day and age of rising tension and insecurity under the threat of a nuclear war; of the steadily growing might of communism making ever greater encroachments upon the free world, steadily extending its influence not only over newly captured territories, but also over the minds of people living in the free democracies; of mounting juvenile delinquency —
America has been blessed with hundreds of thousands of children, boys and girls, Jewish and gentile, throughout the width and breadth of these United States, who daily raise their youthful voices in prayer to G-d, acknowledging that He is the Master of the Universe, invoking His blessings upon their country and all who are dear to them, and expressing their confidence in His benevolence.
With this image in mind, can anyone raise his hand to silence this vast body of American youth, saying: “Stop praising G-d! Stop praying to Him! It is forbidden to do so in the American Public School!” What would be the effect of such an order on all these youths? Can anything explain away to their young minds, far removed from Constitutional Law, the impact of such a prohibition in this country, where the free exercise of religion is one of its most cherished values?
I sincerely hope that every Jew who is conscious of the great heritage of our people, the people who brought the idea of One G-d to the world, will uphold the only position compatible with this tradition – to disseminate G-dliness and the observance of the Divine commandments everywhere and at all times, especially among the youth of today, the builders of our future.
Suppose a person was ill at one time and doctors prescribed a certain medication and treatment. Suppose that years later that same person became ill again, but with a quite different, in fact contrary malady. Would it be reasonable to recommend the same medication and treatment as formerly? … In medieval times, the world suffered from an ‘excess’ of religious zeal and intolerance. In our day, the world is suffering from an excessive indifference to religion, or even from a growing materialism and atheism.”
Our country today is suffering from a growing subjectivity and individualism, and an overwhelming emphasis of rights over responsibilities. As we move forward, we must stand firm in our own beliefs and standards; our faith in the eternal values espoused by the Torah and its ultimate goodness, and our readiness to limit our own desires in deference to G-d’s will. And we must recognize that we are in an environment that poses increasing challenges to who we are and what we stand for, and that we as a society have much to do to ensure that our freedom continues to be a source of pure blessing.
Rabbi Moshe Hauer is the spiritual leader of Bnai Jacob Shaarei Zion Congregation in Baltimore, Maryland.