Many liberal and all Orthodox rabbis do not perform marriages between a Jew and a non-Jew. Will this or other Jewish practices be deemed discriminatory and outlawed?
On its face, the question that is the title of this editorial is absurd.In a mere single chapter in the Hebrew biblical book of Leviticus, Jews are enjoined, “you shall love your neighbor as yourself”; “you shall not lie one to another”; “you shall not cheat your fellow”; “you shall not curse the deaf and you shall not place a stumbling block before the blind”; “you shall not pervert justice, not favor the poor and not honor the great; with righteousness you shall judge your fellow”; “you shall not hate your brother in your heart”; “you shall not take revenge”; “do not taunt the stranger”; “and you shall love the stranger as yourself.”
It is Judaism that introduced the idea of equality to the world, and concretized it in specific imperatives that embrace everyone from “your neighbor” to the handicapped (the “deaf” and the “blind”) to “your brother” and “your fellow” and the “stranger.”Nothing could be further from these biblical imperatives than the idea of discrimination.
Imbedded in this embracing, Jewish religious arc of equality is another overarching, biblical theme: distinctions and boundaries. Directly adjacent to this inspiring chapter in Leviticus is a long list of distinctions and boundaries.
The distinctions, or forbidden combinations, include these imperatives: not to mix certain fibers in clothing; not to plant certain seeds together in the field; not to yoke certain animals together to plow the field; not to engage in intimate relations with certain relatives and others.
The boundaries include these imperatives: to separate oneself from sorcery, from adultery and from the tattooing of the body.
In the Jewish concept, the drawing of distinctions — “between the holy and the profane, between light and darkness, between Israel and the nations, between the seventh day and the six days of creation,” as the idea is expressed in the Havdalah blessing at the conclusion of Shabbat — and the idea of equality go hand in hand.
Likewise, the delineation of boundaries and the idea of equality go hand in hand. Which is why the distinctions and boundaries are adjacent to the Levitical imperatives for equality. The Jewish religion creates a complex spiritual reality. Neither the distinctions nor the boundaries are discriminatory; they are the warp and woof, the indispensable expression, of the Divinely mandated equality.
All this may come under challenge given that one of the Levitical distinctions, one of the instances of proscribed intimate relations, may become recognized as a civil right under the law of the land. Our purpose here is not to address same-sex relations, but to ask whether Judaism may become miscast as a discriminatory religion based upon a rejection of one Levitical proscription under the law of the land. Lest this seem farfetched, consider that ritual circumcision (brit) and ritual slaughter (shechitah) are under greater challenge in Europe than at any time since the Nazi period.
And consider this: The drawing of distinctions and boundaries is inherent to Judaism and to the way it is practiced across the board of Jewish religious ideology and observance, without exception. Though different denominations of Judaism draw some of these distinctions and boundaries differently, all engage in this fundamental, Jewish, religious practice. All make Havdalah, literally and figuratively. Thus, we ask: If under the civil law same-sex marriage may be instituted due to a compelling state interest not to discriminate, will, logically and emotionally, other Jewish distinctions and boundaries also come under attack as discriminatory? Is Judaism a discriminatory religion? The following are instances of one long question:
If a Reform rabbi refuses to perform a marriage ceremony between two people because the couple consists of a Jew and a non-Jew;
If an Orthodox rabbi refuses to perform a marriage ceremony because the couple consists of a female Jewish divorcee and a male Jewish kohein;
If an Orthodox synagogue accepts for membership Orthodox converts but rejects Conservative converts; if a Conservative synagogue accepts for membership Conservative converts but rejects Reform converts; if a Reform temple accepts for membership Reform converts but rejects “quickie” (such as one-day) converts;
If a rabbi of any denomination is faced with two people who ask to be converted to Judaism, and both present similar motivations and backgrounds, but the rabbi judges that one person is a suitable conversion candidate, and accepts him or her; and judges that the other person is not a suitable conversation candidate, and rejects him or her;
If a Jew elects to pray in a synagogue that separates attendees by gender, and denies females full participation in leading the prayers;
If, in those synagogues with regular aliyahs to the Torah, the first aliyah to the Torah is reserved for a kohein (priest) to the exclusion of all other Jews; and the second aliyah to the Torah is reserved for a Levite to the exclusion of all other Jews;
If some Reconstructionist congregations threaten to withdraw from the movement if it authorizes its rabbis to be married to non-Jews;
If, in other words, the state can compel the suspension of one millennia-old Jewish, religious boundary by sanctioning same-sex marriage, a boundary that is held by at least one part of the Jewish religious community; then, are other Jewish religious distinctions and boundaries — held by one or more parts of the Jewish religious community — potentially under threat? Sooner or later, will Jewish religious functionaries and synagogues be at risk of being sued for discrimination? If one Jewish, religious boundary is deemed by the state to be discriminatory, what would ultimately remain of religious freedom? Who is to say that other distinctions and boundaries would not also be challenged?
This question is compelled by the absolute rejection in popular opinion of the words of then California Supreme Court Chief Justice Ronald M. George. He wrote in favor of same-sex marriage in 2008, yet noted: “Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person.” Tell that to the person — the baker — facing a six-figure fine for what he took to be an exercise in religious freedom not to bake a cake for a same-sex wedding.
Will the next person facing a fine be a rabbi who refuses to perform a same-sex marriage ceremony or a marriage ceremony between a Jew and a non-Jew? After all, rabbis could not claim that their marriage boundaries are analogous to other religions, since most Protestant clergy do conduct interfaith ceremonies. With special permission, a Catholic priest will too. Likewise, a Muslim cleric will conduct a wedding ceremony for a Muslim man and a Christian or Jewish woman (though not for a Muslim woman and a non-Muslim man). Would a tighter Jewish boundary open up some Jewish clergy, under the civil law, to charges of discrimination?
What is the difference between refusing to perform a marriage ceremony and refusing to bake a cake for one? One difference could be that the baker operates under civil law, while clergy operate under religious law. The question is, will this valid distinction hold in the current public atmosphere? Will the civil law extend to compulsion against religious law? The penumbra of what might appear to be the cut-and-dried redefinition of a civil right to marriage needs to be carefully considered.
Take what might appear to be a trivial example in the instances listed above, but which is potentially the most serious instance of all. We refer to the distinction in many synagogues between who gets the first and second aliyah to the Torah. This distinction is based on distinctions in the ancient Holy Temple. For example, at pain of excision, non-koheins were excluded from performing virtually all parts of the ancient Temple service. The boundary was utterly clear. Whether one regards this as reflecting contemporary Jewish religious values or not, it is an historical fact.
And the existence of the ancient Holy Temple in Jerusalem is a major basis for the Jewish claim to an inalienable right to the Land of Israel and the State of Israel. It is the denial of the existence of an ancient Jewish temple that renders the Palestinian rejection of a Jewish claim to Israel absurd; and it is the undeniable fact of this ancient Holy Temple that helps render the Jewish claim to Israel rock-solid. The remains of this temple are the main concrete evidence of Jewish residence in Israel in antiquity.
If the age-old traditions of the Jewish religion are, under the force of the contemporary civil law, to be ultimately recast as discriminatory — including distinctions drawn between kohein, Levite and commoner — what impact might this have on the credibility of the Jewish claim to the Land of Israel? If the ancient Holy Temple was just a benighted, discriminatory institution anyway, then be done with the Jewish claim to Israel!
The suspension of the religious freedom restoration act in the context of a single, radical change in public mores regarding same-sex marriage, with the label “discrimination” placed on Jews who still uphold this distinction, could yield farreaching implications that touch practitioners and functionaries of the Jewish religion across the denominations. For the question is: Is it one and the same thing to sanction same-sex marriage and to regard those who reject it as discriminatory? If so, all practitioners and functionaries of the Jewish religion could be under threat.
Or, would a sanction of same-sex marriage not necessitate the stigmatization of a traditional boundary as discriminatory?
It is critical that, if a civil right to same-sex marriage is sanctioned throughout the land, the right to demur be granted, and not be characterized as an act of discrimination. Because it isn’t. It is an act of religious affirmation of a millennia-old boundary, consistent with a long list of closely associated affirmations, such as “you shall love your neighbor as yourself.”
Copyright © 2015 by the Intermountain Jewish News
