Tuesday, February 7, 2023 -
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Universals and particulars in the debate on same-sex marriage

Around the debate over same-sex marriage is one judgement that is universally shared by the proponents and the opponents alike: the purest focus on the topic of morality is intimate relations. One may rightly argue that stealing, lying, deceiving, manipulating and cheating are all foci of morality; equally, none of these rise to the level of sex in defining the most emotion-laden and value-laden fulcrum of morality. The issue in same-sex marriage does not line up on opposite sides: those who profess morality and those who resent its imposition. Everyone is on the same side. Each view of same-sex marriage equally takes a moral stance — it’s just that each side’s definition of morality is the opposite of the other’s. To favor same-sex marriage or to oppose it is to state one’s purest understanding of morality, of what is right, of what is deserved, of what conforms with the highest law. No one who is fighting for same-sex marriage, at least as far as we have heard, is arguing for a laissez faire, devil-may-care approach to sexuality. Quite the contrary: the argument is that it is no less moral for two members of the same sex to marry than it is for two members of the opposite sex to marry.

Another judgement is universally shared in this debate: the centrality of the Torah. It is either held up as the final word in defining the morality of marriage, or it is rejected as such. It is clear that the Torah rejects homosexuality; the rejection of homosexual marriage is included (along with a host of other forbidden relationships). True, it is sometimes argued that the approval of a loving homosexuality is hidden within the biblical words. This is an act of eisegesis (reading into the text, not out of it), an in-group hermeneutic, as the Torah rejects same-sex without qualification. Still, this hermeneutic reflects and confirms the universal pull of the Torah, whose strictures on homosexuality one must accept or reject.

Taking these two immutable judgements together, the debate around same-sex marriage boils down to this: In affirming one’s moral stance on same-sex marriage, is the judgement of the Torah affirmed, or rejected? If it is affirmed, then same-sex marriage is absolutely against morality. If the judgement of the Torah is rejected, herein lie two mercurial implications. First, if the morality of the Torah is rejected, then what does one do with the likes of “thou shalt not murder” and “thou shall love thy neighbor as thyself” (a neighboring verse to the proscription on homosexuality)? It’s the same Leviticus, loving one’s neighbor and forswearing homosexuality. Second, if the morality of the Torah is rejected, another morality must be constructed in its place. This humanly constructed, alternative morality — what shall be its basis and its boundaries?

The limits of heteronomous, divine, biblical morality are clear because the Torah is dual, consisting of a written and an oral law, both divine in origin. At least as early as the founding of Christianity, the Torah has been caricatured as a death-penalty-obsessed or otherwise constricting law imposed by a jealous G-d. This caricature arises out of ignorance of the oral Torah, which elaborates the written text and sometimes modifies it. Not for nothing does the oral law characterize a Jewish court that implements the death penalty even once in 70 years a “bloody Sanhedrin.”

Some confuse the notion of an oral Torah with the notion of a changing-with-the-times, chameleon Torah. In defining the limits of the oral Torah, the oral Torah has its own built-in limits. To the extent that they reshape the written Torah’s concept of marriage, they do so restrictively, not expansively, per the Torah’s understanding of holiness as restraint (“thou shalt not”). Thus, the written Torah’s polygamy is proscribed. “Grey area” is not a notion that is applicable, upon personal choice, anywhere in the Torah, be it ritual or human relations. Sometimes, “grey area” reflects a temporary state of affairs as trained scholars of the Torah grapple with new technological developments until their import in Jewish law is clarified. “Grey area” does not include such legal principles as “thou shalt love thy neighbor as thyself” or proscriptions against same-sex marriage. Same-sex is an instance in which the oral Torah does not elaborate the text in a way that modifies its intent at all. In this it stands out.

Once human autonomy becomes the basis of morality, it becomes necessary to develop its own mechanisms of elaboration. Specifically, it becomes necessary for the human morality to define why a variety of relationships and identities, all excluded by the heteronomous morality of the Torah, must be either excluded or included. It becomes necessary to define why, if it is deemed permissible for two people of the same sex to marry, it is not also permissible for two siblings to marry (incest), or for one adult and one child to marry (pedophilia). Of course, a new, autonomous morality may reject incestual and pedophiliac marriage. But when the biblical morality is rejected, a new morality substituted for it requires either the delineation of why incest and pedophilia are rejected, or their acceptance.

In our view, the substitution of human autonomy for the heteronomy of the Torah leads to a swath of untenable distinctions and emotional fissures, but neither these, nor social arguments, are the main reason why we affirm marriage consistent with the Torah. The Torah has sustained the Jewish people and, more broadly, nurtured civilization for thousands of years; the Torah is superior to any other morality ever devised or ever claiming to be revealed. The burden of proof is on those who would reject the biblical morality, who must then provide a compelling substitute that stands the test of centuries and indeed millennia, a morality not just for same-sex marriage but for every other possible intimate arrangement. Once same-sex marriage is admitted on the grounds that human beings demand it under a new morality, there will be other human beings who will demand the legitimation of other relationships, too.

The claim is often heard that this is far-fetched. The distance between same-sex marriage and incestual marriage, it is claimed, is not only morally remote but downright ridiculous. However, the claim of ridiculousness is an emotional appeal, not a pragmatic and still less a moral position. This emotional appeal fails on pragmatic grounds because the very same claim was made just 18 years ago in Denver about same-sex marriage itself. Then, the issue of public validation of homosexuality first arose in the civil realm. Then, it was widely heard that the demanded validation was for civil rights, not for same-sex marriage. A distinction was drawn between them by advocates of the civil rights bill themselves. But the pragmatics caught up; now the demand is for same-sex marriage. The pragmatics caught up because there is no logical distinction between the validation of homosexuality via a bill or via same-sex marriage. Both are based on a redefinition of morality, on a substitution of an autonomous morality for the heteronomous morality of the Torah. Once that occurs, the pragmatics will catch up on a variety of other relationships, including incestual marriage.

Here, social arguments would seem to intervene, but what we end up with is ping pong. Example: No one would advocate incestual marriage because the offspring  are likely to be genetically tainted; to which one may respond, with the onset of birth control, there need not be any offspring; to which one may respond, this is no guarantee; to which one may respond . . . ping pong. Social arguments go round and round. Example: No one would advocate pedophiliac marriage because a child may offer no meaningful consent; to which one may respond, with the legitimation of marriage outside the Torah concept, the pressure to make the age of consent lower and lower will be irresistible; to which one may respond . . . again, ping pong. Round and round, because the real underpinning of the debate on same-sex marriage is moral, not social; and morally, do we affirm the Torah teaching or reject it?

To formulate the issue this way is not a new or unwarranted intervention of the sacred into the secular; not the intervention of religion into a neutral public square. At least in America, marriage has always been an intermixture of the sacred and the secular. The state authorizes both religious functionaries and secular functionaries to perform marriages. Both religious and state functionaries acknowledge the state as a regulator of marriage. The state has defined and outlawed the boundaries of certain marriages permitted by certain religions, such as Mormonism. It breaks no church-state precedent for the state either to prohibit or to permit same-sex marriage. At its heart, the issue is not a political one, but a moral one.

The stakes in the current debate are higher than same-sex marriage. The stakes are the foundation of morality and the configuration of civilization.




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