Last Gasp

The US Supreme Court is now wrestling with two cases that pose the same dilemma: should the Court acquiesce in the legalization of same-sex marriage, and if not, then why not? The two cases present separate issues and could result in decisions that skirt the issue at hand. The first, the Defense of Marriage Act, passed overwhelmingly by Congress and signed into law by President Clinton all the way back in 1996 (when America’s moral code was apparently archaic and repugnant) might be ruled unconstitutional simply because the laws (and thus the definition) of marriage are almost always a state concern. The second case, although first argued, undermines that suggestion, as Proposition 8 in California that defined the only possible parties to marriage as one man and one woman was overturned by that leftist state’s Supreme Court; i.e., the better framework to define society’s values – the people of each state, rather than the federal government – was deemed unacceptable by that state’s court, after the people overwhelmingly voted to overturn a court decision that had permitted same-sex marriage. Do the people rule or do the judges rule?
Two points about the oral argument fascinate. As was widely reported, Justice Kagan read from the House report that accompanied the passage of DOMA in 1996, that stated that Congress acted in order to “express moral disapproval of homosexuality.” That provoked what was reported in almost every news account to be “gasps” from the assembled spectators in the courtroom (obviously, and understandably, overpopulated by same-sexers and their supporters). A “gasp,” as we understand it, is a “short convulsive intake of breath, as if from shock and horror.” It remains unclear whether the “gasps” resulted from the quaint expression of conventional morality less than two decades ago, or the astonishing bravery of Justice Kagan in reading aloud such subversive sentiments – and in public, and while being recorded, and despite her obvious disagreement. How is it that what was evident until just recently has become so unmentionable today?
That engenders the second point, which is the utter failure of the opponents of same-sex marriage (Charles Cooper in the California case, Paul Clement in the DOMA case) to make any cogent argument to support their case. Their contentions were tangential, as in Cooper’s argument that marriage laws exist in order to promote the state’s interest in “responsible procreation.” That argument is palpably weak, although its core (promotion of the ideal family) is a coherent thought. The fact is that the rate of Americans born out of wedlock today is approximately 40%, and in the black community well over 70%. Few of those births are the product of “responsible procreation.” Was that the best argument he could use?
Here is what he could have said, in an attempt to defer the last gasp of morality in American life:
The same-sex faction has been remarkably devious in setting the terms of the debate, and labeling (subtly or heavy-handedly, as needed) all opponents of their desires as dissolute bigots. That was accomplished by wrapping themselves in the mantle of the civil rights movement, and framing the issues as equality and the suppression of love. Neither is plausible.
The comparison to the anti-miscegenation laws, that banned marriage in the US between whites and blacks until finally ruled unconstitutional in the 1967 Loving case (how’s that name for pleasant coincidence?). But that analogy is easily refuted. The Equal Protection Clause applies to people defined by objective characteristics, for which even religion qualifies due to its all-encompassing nature. The protection of certain behaviors – especially private ones – represents a sharp departure from the purposes of the 14th Amendment.
Moreover, blacks are people, as are whites and Asians. Skin color is inherently no different than hair color or eye color. That society at one point made such distinctions is abhorrent and based on ignorance and prejudice. (Jewish society is certainly well aware of this, as on any day here in Israel, one can walk the street and see white, black, brown and Asian Jews.) Any law that would prohibit blondes from marrying brown-haired people would be understandably ridiculed by any thinking, decent person.
What does that have to do with men marrying men and women marrying women? The underlying assumption – to play out the analogy – is just like there is really no fundamental difference between blacks and whites, so too there is really no fundamental difference between men and women, and thus any combination in marriage should be acceptable. But would any thinking, unbiased person aver that there is no fundamental difference between men and women? (I said “thinking” person.) Marriage has always been an institution that unites “opposites” – the man and the woman – not the “sames.” And that union of opposites has always been the foundation of the family, and frankly, always will be.
Nor does the “suppression of love” assertion carry any weight. There is no logical reason why – if the basic definition of marriage is to be transformed – that marriage must be restricted to two people. Why not legalize polygamy? Polyandry? Polyamory? Poly-want-a-crackery? Love is a many splendored thing, and the only limits to the variety of romantic preferences of the Homo sapiens are imagination, energy, opportunity, and, of course, morality.
Furthermore, how can the law restrict the love opportunities of the bisexual? Should he/she be allowed one spouse of each variety, formally recognized by the state in which he/she lives? How can the law ban incestuous marriages between adults, like the Kentucky father and daughter who are currently in prison because their loving, consensual union has produced several offspring? The fact that the law limits marriage and prohibits certain relationships reinforces the unique nature of marriage that civil society has an interest in promoting.
Ted Olson’s contention that the law bans polygamous relationships because of fears of abuse, concern over inheritance rights, insurance issues, etc. is completely bogus. Abuse can take place in any relationship, and paternity testing is sophisticated enough today to determine appropriate parentage with absolute certainty. The insurance system is a mess anyway, and getting worse. It is shocking (and from this perspective, sheer ineptitude) that proponents of the California ban and DOMA did not see fit to raise these issues.
And, yes, there is the moral issue that the House report noted (although it was by no means the motivation behind the law) that provoked the audience “gasps” – but was not at all defended by the lawyers in this case, likely for fear of public ridicule or worse by the homosexual lobby. (Paul Clement, representing DOMA, had to resign from his law firm because of the threats that caused his firm to withdraw from the case.) But there is a compelling case to be made. There is a reason why the Bible – and millennia of history – endorsed marriage between men and women, and why the Talmud even states that despite the decadence (including same sex relationships) of the generation of the flood that necessitated their destruction, at least they did not have the gall to write marriage contracts and publicly celebrate such unions. (In Chullin 92a-b, the Talmud notes that the prohibition against “same sex marriage” is one of the three commandments that even the most depraved pagans observed, along with not selling human flesh in butcher stores and honoring the Bible.)
The man-woman dynamic in marriage is best for man, for woman, and for society. It allows for a proper division of roles, and for the full development of each aspect of the human personality. We all benefit from a loving relationship with the opposite sex, not to mention that we were designed to reproduce together, and that such a relationship, in a family ideally managed by man and woman, father and mother, is best for children (despite the politically correct rubbish being proffered today – and quite suddenly, at that– by the association of pediatricians and likeminded “scientists.”) That is obvious – political conclusions masquerading as “science.” The alternative – that the composition of the family unit does not matter – is so preposterous, that it calls to mind George Orwell’s famous quote: “There are some ideas so absurd that only an intellectual could believe them;” an intellectual, or even a regular person cowed into fear and submission by a culture that is glorifying free expression at the expense of societal cohesion.
Justice Kennedy made a plaintive cry on behalf of the 40,000 Californian children who live with same-sex parents who cannot marry, and thus suffer some stigma. Oh, please. Hundreds of thousands of Californian children live in homes in which the two adults, male and female, are not married. This is California, for goodness’ sake. Has the esteemed Justice – a Californian himself! – never heard of the Hollywood marriages, where men and women flit from person to person, have children outside of wedlock, and think nothing of it? In parts of California, a child who is being raised by his two biological parents, married and living together, is probably stigmatized. And, again, none of the attorneys saw fit to point out, respectfully, the sheer preposterousness of the statement.
None of the proponents even dealt with another aspect of the claims raised against the traditional marriage – the hardship brought about through visitation denials, inheritance problems, etc. Besides the fact that each issue can be dealt with through civil contract – each and every one, without exception – the broader issue is that the same problem could affect brothers and sisters living together, or close friends who are roommates who also lack – naturally – the imprimatur of law on their relationship. Should the definition of marriage – and the institution itself – be undercut in order to allow visitation, bereavement rights, insurance benefits, etc. for people who just live together without any sexual relationship – what was once known as a “friendship”? Why is the private conduct of the parties the determinant? Why can’t just any two people who love each other – or profess love for each other, even in a Platonic way – “marry”? The answer is that such a definition will swiftly bring to an end to the concept of marriage as we know it, which might be the intention of the ancient Roman reincarnates who are promoting this cause.
The other issue that surprisingly was ignored was the effect of an adverse decision here on religious life in America. I do not believe for a moment that if same-sex marriage is legalized that religious groups – churches, synagogues, clergy – will be exempt from practicing it or allowed to ban it in religious facilities – no matter what proponents of same-sex marriage say today or the law enshrines today. I do not believe for a moment that a practice whose ban is analogized to anti-miscegenation laws will be permitted to groups adhering to Biblically-based objective morality. A church, synagogue, caterer, orchestra, rabbi, minister, photographer that refused to participate in a marriage of a white and a black would be sued, prosecuted, lambasted, tarred and feathered. (It has already happened in New Jersey – suits against a church and a photographer that originated with the state’s Human Rights Commission for rejection of a same-sex couple’s nuptial needs.) Those who state that religious organizations will be exempt from same-sex marriage laws are the exact same people who stated that religious organizations would be exempt from the dictates of Obamacare. We should not fall into that trap a second time. If opposition to same-sex marriage is routinely construed as nothing other than bigotry, no opposition will long be tolerated.
There is a libertarian argument to be made for same-sex marriage, but society benefits from strong families. No one suggests that a single parent household is ideal; sometimes, it is an unfortunate reality and many do a heroic job in raising children single-handedly. But a child reared without a maternal or paternal influence is disadvantaged regardless of the conclusions of the spurious “research,” but it is an impediment to a successful life that they might overcome. The law should be fostering intact families, rather than succumbing to the sham arguments about equality and civil rights.
The assault on the integrity of the American family – and the decline and even mockery of traditional two-parent families – has been devastating to American life, with the full ramifications not yet fully known. The phenomenon of men procreating and evaporating is one symptom of the collapse of the ethic of personal responsibility. The long term effects on children raised without clear sexual identities – taught to experiment, that they can marry either “a boy or a girl, or both, as they choose, because anything goes and everything is normal” – seem fairly obvious to all but those whose agenda is clear, and is another inevitable consequence of the legalization of same-sex marriage.
It is a shame that no one sought to respond to the “gasps” that erupted in the Supreme Court. Traditional morality has been the bedrock of every civilization since ancient times, and those societies that abandoned or rejected it did not long survive. Europe is already failing, and the rejection of traditional morality is just one cause of its deterioration that is proceeding apace. Why a United States – or a Western world – that heads down this same path should assume its long-term survival is a mystery. It is not that same-sex marriage will cause the world to end, but rather that legalization of same-sex marriage is one omen of a society that has lost the will to sustain itself.
Certainly, the Supreme Court might punt and decide on procedural grounds that they cannot rule substantively on these cases (“standing” issues, in legal parlance) but the Court has never been reluctant to insert itself into heated social issues. The better option for traditional moralists might be a ruling that this is a state matter, period, and allow the states to decide. Most states (31 to date) have banned same-sex marriage, while nine have permitted it – a source of some hope, but limited hope because those 31 states and the non-committed ones will be subjected to relentless pressure in the future. This, in a normal world, would validate Proposition 8 in California. The worst outcome would be a decision that same-sex marriage has somehow, magically, become a constitutional right, and thereby require each state to recognize it under the Constitution’s Full Faith and Credit Clause.
Of course, the ideal outcome is not judicial, but repentance for all mankind and a return by all of us to the morality bestowed by God not to harm us but to benefit us, which – despite our occasional stumbles – is still the perfect blueprint for man’s happiness and success in this world.

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8 responses to “Last Gasp

  1. Now that Liberals favor the legalization of so-called homosexual “marriage” based on the principle of consenting adults, what is next?

    Will the Liberals also favor the legalization of incestuous “marriage” where a man would be permitted to marry his own sister or his own mother? [G_d forbid x 1,000].

    Will the Liberals also favor the legalization of bestial “marriage” where a man would be permitted to marry his own dog or sheep? [G_d forbid x 1,000].

    Last but not least, in recent decades, every “Jewish” movement that permitted so-called female “Rabbis” also eventually permitted so-called homosexual “Rabbis”. For example:

    [1] The Reform Judaism movement voted to permit female “Rabbis.”
    Years later, they also voted to permit homosexual “Rabbis”.

    [2] The Reconstructionist Judaism movement voted to permit female “Rabbis.”
    Years later, they also voted to permit homosexual “Rabbis”.

    [3] The Conservative Judaism movement voted to permit female “Rabbis.”
    Years later, they also voted to permit homosexual “Rabbis”.

    Based on this historical pattern, what can we expect to eventually happen if Orthodox synagogues vote to permit female “Rabbis”?

  2. “…repentance for all mankind and a return by all of us to the morality bestowed by God…”
    Agreed.
    For anyone who suggests an alternate morality – where are your credentials?
    If they do not surpass “Creator, Sustainer, and Savior of the world” we will tick with the origianl morality.

  3. I intended to write “stick”, but it is certainly God’s moral character that makes everything tick.

  4. Rabbi, I believe you are incorrect vis a vis the Equal Protection clause. The touchstone of Equal Protection analysis is whether a law improperly discriminates against a distinct group of individuals, either for no rational basis (in the case of non-“heightened scrutiny”), or in a way that does not implicate a compelling governmental interest (this is the “heightened scrutiny” that is applied in the case of “suspect classes”). There is a very good legal argument for either: (a) gays are a “suspect class” because there is a history of discrimination against them and their sexual preference is immutable; or (b) even if gays are not a suspect class, legislatively excluding them from marriage laws has no rational basis.

    Your argument regarding the Loving case is misinformed. The analysis is not whether “men are different than women,” but rather whether there is any rational difference between a gay man/woman and a straight man/woman that would necessitate laws that are applied differently to the two groups. Just as in Loving, where the court found that there was no rational basis to discriminate against black people by prohibiting them from marrying whites, here it can be argued that there is no rational basis to discriminate against a gay individual by prohibiting him/her from marrying his/her soul mate. And if gays are indeed found to be a “suspect class” (which I think is a good argument) then the government would need a “compelling state interest” to justify the discrimination. Your moralistic assumptions notwithstanding, this is a very difficult legal standard to satisfy.

    Speaking of your assumptions regarding the supposed necessity and salutary effects of heterosexual marriage, I find it odd that you casually dismiss and — put in quotation marks — research that was actually conducted regarding this issue. While many of us have the inclination to avoid and disclaim facts and science when they conflict with our personal beliefs, I think the right approach is to frame an argument that takes those facts into account (e.g., “Given that science has basically proven that the world is not 5000 years old, but my belief in the Genesis story leads me to conclude that the Torah’s reference to days of creation is metaphorical/not scientific.”). Rejecting concrete scientific research without citing any contravailing facts/science does not advance your cause.

    By the way, this is coming from someone who believes that each state should decide the matter. I actually do not believe that the marriage issue is an equal protection violation if a state court or legislature upholds a ban on same-sex marriage, for numerous reasons (I do think DOMA is unconstitutional because I do not think this is in the province of the federal government.) My point is simply that your predilection to view things in black-and-white is unrealistic, and usually inaccurate. We live in a world of greys.

    • I think I answered each point in my original essay. Opening up the Equal Protection Clause to classes that define themselves based on private behaviors opens up a Pandora’s Box. I’m surprised you didn’t respond to the incest argument.
      And the “science” is completely politicized, with conclusions determined in advance. A scientist who dared publish the obvious would be discharged from his position, and if an academic, fired. Such is the state of free speech today. Only certain conclusions are welcome.

      -RSP

  5. This thought comes across more clearly when spoken than in print, but here it is: When anything goes, everything goes.

    Thank you rabbi

  6. “The concept that G-d created a human being who is unable to find happiness in a loving relationship unless he violates a biblical prohibition is neither plausible nor acceptable. G-d is loving and merciful.”

  7. The fundamental flaw, and the elephant lurking in the room, is this: A refusal to recognize that homozexual beahviour – as opposed to an inclination – can be overcome. None of this so-called debate even begins when we recognize this. It is only when one believes that homosexuality cannot be changed, that the victim culture train that drives everything in America gets started.

    You also state forthrightly that everyone acknowledges there are differences between men and women, but skirt around that when it comes to blacks and whites. and no, I dont expect you to comment on this, even though you probably agree. I understand professional concerns, the fear that prevents anyone from having a serious debate today. I contend that the fear of tackling this issue is also what has lead to where we are today. The word “discriminate” means “to differentiate.” Once we, as a society, began refusing to differnetiate, the slow road to homosexual marriage was inevitable.

    I too, am keenly aware of that Talmudic passage in Chullin, and it is remarkable. Many Americans seem to think homosexuals are something new, something that has lurked in the closet for thousands of years, and its emergence should thus be celebrated like the discovery of a new mega fauna. Riddiculous. Gibbon says, IIRC, that something like every Roman Empereror save one, for a period of a few hundred years, engaged in homsexuality. In ancient Greece it was common. Yet no one thought to put it on a par with normal marriage. It is only the focus on the individual taught in public schols, combined with the sheer ignorance of the classics, that enables people to even think this way.