Category Archives: Machshava/Jewish Thought

(This was originally published on Torahmusings.com. It is reprinted and supplemented here.)

The Obergefell decision is going to impact negatively on Jewish life in America, both legally and culturally, although the blow will be cushioned because of the gradual nature of the deterioration.

Give credit where credit is due.  Seldom has a social movement succeeded in revolutionizing American society with the speed that was exhibited by the advocates for same sex marriage. If we recall that in 2008, both Democratic candidates for the presidency opposed same-sex marriage, it means that in less than a decade, the nation, its laws and values, and the very foundation of marriage were fundamentally transformed in ways that are both obvious and unpredictable. Advocates achieved their goals at breakneck speed by framing their cause as one that is rooted in the practice of individual rights and liberties, mooring themselves in the language and rhetoric of the civil rights movement.  And therein lies one of the primary dangers ahead for the Jewish community and other religious groups: the equation, now subtle but perhaps in the future more overt, between proponents of traditional marriage and racists.

That does not bode well for the Jews and others who adhere to the Judeo-Christian ethic on which American moral norms were once based. We are all familiar with the statement in Masechet Chulin (92b) noting that even the notoriously decadent Generation of the Flood did not have the gall to “write a marriage contract between two men.” That inhibition has been eradicated, with its converse now enshrined in American law. For the first time, something the Torah defines as a sin for both Jews and non-Jews has gained official recognition, popular acclaim and legal protection. We failed in our obligation to ensure that this society adhere formally to the Noachide laws. That failure was perhaps inevitable, as religious Jews are indeed a minority within a minority and with limited influence on popular cultures and mores.

Certainly, efforts have been and will be made to protect the religious liberties of adherents to traditional morality who do not wish to associate with or be seen as sanctioning marriages that violate their religious sensibilities. Those laws will work for a time and to a point, but they will not protect “offenders” from the expenses and stresses of defending themselves against the foreseeable lawsuits for refusal to rent a facility or provide personal services for a same-sex wedding. Nor are those laws guaranteed to withstand the scrutiny of courts that are uncommitted to constitutional precedent but simply write into law their personal moral predilections.

In other words, it is entirely predictable that a shul that refuses to rent its social hall to a same-sex couple – or even to announce in its bulletin the upcoming nuptials – will be sued, be compelled to hire lawyers to defend its rights, have the laws it thought protected their religious freedoms be overturned, and/or be treated to the public scorn worthy of a place of worship that decided, willy nilly, to deny membership to blacks for reasons strictly limited to race. Even sooner than that , a Jewish-owned kosher catering hall (in Borough Park or New Square?) will be sued for denying its facility to a same sex couple that wishes to have a glatt kosher wedding on its premises. The expense of the lawsuit will render any proposed legislative protections ephemeral and hollow.

Those who believe that this a farfetched, unrealistic nightmare would do well to consider the case of Bob Jones University, the religious Protestant college located in Greenville, South Carolina. Their long-standing policy – revoked only in the year 2000 – barred its students from engaging in interracial dating or marriage, which, unfortunately, they based on their reading of the Bible. In 1982, the United States Supreme Court upheld the IRS’s revocation of Bob Jones University’s tax exempt status on the grounds that such racial discrimination violated public policy. It does not take a great leap of faith or imagination to envision a similar process unfolding in the near future that challenges the tax exempt status of shuls, yeshivot, or other Jewish institutions that cling to similar “repugnant” or “outdated” notions of traditional marriage. That the differences between racial discrimination and same-sex marriage discrimination are abundantly clear and eminently justifiable will not matter one whit to the institution that is sued or harassed and threatened with financial ruin protecting its own religious liberties.

Indeed, the threat to the tax exempt status of religious organizations that oppose same sex marriage was admitted by the Solicitor General, Donald Verrilli, Jr., during oral argument in this case, and noted by Chief Justice John Roberts in his dissent: “… [t]he 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.” That is the frightening new world that we have entered, and in which promises of legislation that will allegedly shield religious groups or individuals should provide little comfort. We are at the mercy of tomorrow’s libertine, legal crusaders.

A religious homeowner that refuses to rent out his basement apartment to a same sex couple – not to mention the caterer that refuses to provide food for a same sex marriage – will find themselves in profound legal trouble. Once opposition to same sex marriage or relationships is defined as bigotry – and as the Supreme Court dissenters in Obergefell conceded, that is the import of the Court’s decision – all putative legal protections will not matter. American law does not protect bigots; it prosecutes them, it has them sued, and in the case of one upstate New York couple who refused to rent their farm for a same sex wedding because it violated their Catholic faith, it sentences them to weeks in an indoctrination camp to cure them of their biases. Their sentence, including a $13,000 fine, was recently upheld by the Appellate Division.

All of which begs the question that advocates of same sex marriage successfully raised during their campaign: What possible harm can accrue to you or me if Jack and Joe or Fran and Sue are allowed to marry? This question has several answers; unfortunately, none of them resonated with the popular media (including the implicit threat to religious liberty). But this revolution in our conception of marriage will dramatically alter the way children are educated and socialized in this society.

Marriage is already a troubled institution in a land that celebrates individuality and permissiveness and chafes under any type of moral restraint. Imagine a society in which children are taught that boys can marry boys or girls, and girls can marry girls or boys – that any combination in sex or number is “normal.” Identity confusion will reign with all the attendant consequences to one’s pursuit of happiness and spiritual growth. Imagine living in a society in which polygamy, polyandry and polyamory are legalized and normalized (after all, once marriage is legally redefined, there is no logical or legal reason to permit same sex marriages and prohibit marriages involving multiple partners.) The cherem of Rabbenu Gershom that proscribed polygamy for Ashkenazic Jews will be a dead letter, and our aspiration to build holy homes will be so out of touch with prevailing norms as to make religious Jews outcasts (or even greater outcasts) in civil society. That phenomenon has bedeviled us since the 1960’s but will be exacerbated in the near future.

Additionally, the decision signals that opposite-sex parenting is not the ideal environment in which to raise children, which is the exact opposite of what the Torah encourages and what millennia of human history has reinforced. That attitude can seep into our world as well.

The Court has now spoken and its decision will not be reversed anytime soon or perhaps ever.  Notwithstanding the above, we might be able to tolerate a “live and let live” scenario, but SSM advocates have always been less interested in rights and more interested in legitimacy. The issue that transcends the Court decision is one that we have faced before with mixed results: how can Jews remain active and viable members in a society that is in steep moral decline, and whose cherished values are antithetical to basic Jewish norms? There have always been individual halachot that set us apart from the rest of society. Kashrut regulated what and with whom we could eat; Shabbat provided us with a spiritual cocoon for at least one day a week to enjoy unmitigated holiness; Taharat Hamishpacha sanctified marriage and elevated the marital bond beyond the mere provision of mutual physical pleasures. Now, for the first time in memory, a particular halacha – the ban on same sex relationships – is perceived by the American legal system, if not also by a substantial part of the population, as morally abhorrent and indicative of an archaic and particularly detestable form of hatred.

Jewish children raised in such an environment will be hard-pressed to see the beauty, wisdom and Divinity in a Torah that communicates such principles while viewed through that distorted lens. And if such a sentiment goes unchallenged and unrefuted, their commitment to mitzvot will necessarily wither. We will need to redouble our efforts to ensure the survival and relevance of our Torah-based morality.

The other factor to ponder is that the Court has, again, reduced Constitutional jurisprudence from a system of objectively-based rights to the personal whims of five justices. Five justices who could on their own redefine marriage (about which the Constitution itself is completely silent) could also redefine the First Amendment’s freedom of speech and exercise of religion to the detriment of Jews as well.  The ongoing efforts to criminalize or penalize certain types of speech on campus or the workplace are a harbinger of such encroachments on our freedoms. Could a statute define the public reading of Vayikra 18:22 as unlawful  “hate speech”?  Not any time soon, one would hope, but there are few guarantees for the future. A government of laws provides more security than a government of men (and women). Sadly, at present, laws do not mean what they seem to say as much as they mean what the Justices say they mean, and the fact that the Court overturned the laws in support of traditional marriage democratically enacted in dozens of states is also ominous.

The sky is not falling, and assuredly the Jewish people have faced greater challenges and threats during our long sojourn in the Exile. But the sky is darkening, and the moral decline of America, as symbolized by this and other Court decisions as well as the breakdown of the family, does not bode well for the future. A lower percentage of adult Americans are married than ever before and a greater percentage of children are born out of wedlock than ever before. Obergefell  is just another step in this societal deterioration.

Is the picture irredeemably bleak? Well, yes, but that too is part of the birth pangs of Moshiach. The pre-Messianic world, which is now physically at war with itself – there is no place on the globe safe from the scourge of Islamic terror –  is also a world that is witnessing a collapse of the moral and ethical norms that enabled mankind to stay afloat, even if uneasily, for millennia. It is a world that is ripe for Moshiach – and that demands that we Jews strengthen ourselves in our faith and commitment, never weary of preaching G-d’s morality in a polite and appealing way to our neighbors, and maintain the courage of our convictions despite the legal and rhetorical assaults against us that can be expected.

There are some laws that protect a minority that all good people should welcome, and other laws that purport to protect a minority but instead encumber, inconvenience and prejudice the majority. That is what the Obergefell decision accomplished. The world may have changed for the worse, but we hope and pray that it can still – and soon – change for the better.

   Well, almost, but not quite. But even “almost” is a high praise for a devout and pious Catholic.

The sudden passing of US Supreme Court Justice Antonin Scalia leaves a void not only on the Court but in the legal world. Scalia was a revolutionary thinker and, even if there are successors and followers, few have demonstrated the knack of writing with his trademark verve, flair and color. Scalia was born for intellectual and legal combat, enjoyed it immensely and engaged in it without hesitation. There has to be few pleasures in life for legal scholars greater than reading a Scalia dissent – pungent, cogent and forceful. My series “The Law and the Law,” which contrasted Supreme Court decisions with the Torah view on the particular cases at hand (all accessible on this site) occasionally relied heavily on Scalia’s dissents for the most articulate and reasonable expression of constitutional jurisprudence.

But “Orthodox”? Consider.

Scalia was a so-called “originalist” who perceived the role of the Supreme Court as attempting to ascertain the original intent of the Framers of the US Constitution and then applying that interpretation to the matter at hand. As such, he venerated the Constitution (and the legal precedents established in the early years of Supreme Court jurisprudence) in the same way that a religious Jew venerates the Bible. Indeed, an analogy can be made between the way “originalists” approach the Constitution and Supreme Court case law to the way faithful Jews approach the written Torah and the Talmud and Codes. Everything is sourced, the system is self-contained, and what is required at most is the application of traditional principles to new situations.

This is the place where one gigantic “l’havdil elef havdalot” is necessary, as G-d’s Torah must certainly be distinguished from man’s (even enlightened man’s) Constitution. Nonetheless, the analogy is still apt, because the intention of the Framers, as Scalia saw it, was that the Constitution serve as the permanent framework for self-governance and the preservation of individual liberties. If each generation saw fit to tamper with the Constitution and drastically transform it according to the prevailing winds, then that Constitution would not survive and the American republic would also collapse, as have other societies with malleable founding documents. Indeed, many of those other societies crumbled in the wake of sudden loss of personal freedoms that had been guaranteed by charters they later deemed obsolete. Those nations usually wound up in the throes of dictatorship.

To revere the Constitution is to make it the anchor of law and governance, and amended only via a rigorous and deliberate process that fully reflects the wishes of an overwhelming preponderance of the American society. Scalia felt it was a betrayal, and downright bizarre, to impose on the Constitution rights, values, doctrines, penumbras, and personal judgments that were simply not there.

He asked, in effect: how can capital punishment be unconstitutional, when such sentences existed when the Constitution was enacted? How can privacy or abortion be a Constitutional right when the former went unmentioned in the text and the latter was a crime for more than 150 years after ratification? How can same-sex marriage be guaranteed by the Constitution when the Constitution does not mention marriage – any type of marriage – at all?

What offended Scalia was not so much the policy implications (those are personal to each judge) but the notion that laws were not being made by legislatures – the people – but by nine people in black robes, all unelected, and all with but temporal existences. He recognized that, whatever his personal view, states could pass laws allowing abortion, as states like New York, New Jersey and California did years before Roe v. Wade; but there is no Constitutional question that is being raised (except perhaps whether the Equal Protection Clause applies to fetuses). Sometimes the Constitution is just silent on a particular issue. The identical reasoning applied to same-sex marriage or other “social” or “political” issues the Court was called on to resolve. He rightly saw the reluctance of legislators to vote on these matters, preferring the Court to do their dirty work for them, as cowardice that was unworthy of this Republic.

Laws should reflect the will of the people, through their elected officials, in almost every case. The Constitution cannot be transformed, distorted or upended simply based on the whims of nine Justices. It is a powerful argument, not only on the merits but also practically. There is no certainty in law – and there should be certainty in law for society to remain orderly and functional – if the personal predilections of a handful of people are routinely substituted for the judgment rendered by the Founders as to how they sought to form a “more perfect union.”

The other side against whom Scalia warred argued that the Constitution must be a living document that evolves with the times, and that it must always reflect the values of the current generation. That is to say, it should cease functioning as a practical guide to governance and freedom and be relegated to the status of an ancient text trotted out for confirmation of a particular bias but never as a definitive expression of an American virtue, ideal, aspiration or source of law.

That attitude explains the current uproar over Scalia’s replacement, an unseemly spectacle that began before his body was even cold. It underscores the sad irony of a president who has regularly run roughshod over his constitutional limitations and a Congress that has failed to assert itself properly in the scheme of checks and balances. Each group, but certainly the political left for the greater part, is seeking to implant on the Supreme Court another politician in the disguise of a legal scholar, someone who can be relied upon to adhere to certain policy conclusions regardless of their Constitutional propriety. That is not what the Supreme Court is supposed to be, and that is not how Scalia saw his role.

For decades, the Supreme Court has functioned in the exact opposite way to that of the Halachic scholar. The Court is result-oriented, where Halacha is process-oriented. The politicians who sit on the Court have for too long decided what legal conclusion they wish to reach, and then buttressed that conclusion with half-baked Constitutional pseudo-precedents or, more frequently, inventing new ones out of thin air. The Justices do not analyze the sources and reach an objective decision. Jewish law – some notable exceptions aside, such as the bias to free an Agunah – looks at the process, precedents, the facts and circumstances and renders decisions objectively, although not dispassionately. That is why the confirmation process today is so contentious; an impartial justice is not being appointed as much as another partisan politician is being elected for life and given a black robe.

The Scalia approach to the Constitution outlined above is quite similar to the way the Halachic jurist approaches the Torah, and here’s the rub: Scalia’s legal antagonists, those who wish the Constitution to be a “living, evolving” document, find their parallel in the non-Orthodox movements who view the Torah from the identical perspective. They also see a Torah that must evolve with the times, a Torah that must adapt to new values and bend to new and more powerful winds. To them, the morality of the Torah is always subject to change because of the new and allegedly “higher” morality as enunciated by each generation of modern man.

Thus, it astonishes, perplexes and vexes a Scalia-like Halachist that the non-Orthodox routinely embrace new values like pluralism, egalitarianism, feminism and others, force-feed them into the Torah system and emerge with a peculiar amalgam of laws and rituals that seem Jewish but only barely so. When the anchor of Torah is disengaged, what is left is a ship of Judaism that is buffeted by the prevailing winds and navigates unsteadily through the treacherous waters of modernity. It can never guarantee safe spiritual passage for any Jew, as history itself proves. Thus, it is no accident that so many Orthodox thinkers felt such a bond with Antonin Scalia; it was not only the policy but especially the process in which we found the symmetry of approaches.

Lest one exclaim that before anyone idolizes the Constitution we should recall that the Constitution permitted slavery (!), we should recall as well that so did the Torah. Of course, neither document (L’havdil, again) extolled slavery and favored its survival but rather recognized its reality and tried to limit and, over time, eliminate, its inherent excesses and potential for human degradation. (For the Torah view of slavery, see the appropriate section in my book “Tzadka Mimeni: The Jewish Ethic of Personal Responsibility” available here or at the top of this page.)

But consider as well that the Constitution contained within it the laborious process by which it could be amended, and in ways that could even contradict the intention of the Framers. An amendment was, in effect, the result of a new Constitutional Convention on one issue. Naturally, the divine Torah has no such provision but the Torah did give the Sanhedrin and the true Sages of every generation the right to make ordinances, and certainly to apply the Torah’s principles to new situations. That is how modern Halachists reckon with electricity on Shabbat, new technology that assists couples dealing with infertility, and sundry other issues – all in compliance with the divine vision. In that way, we adapt modernity to the Torah rather than adapt the Torah to modernity.

I only had the privilege of meeting Justice Scalia one time, and he was as many have described him: warm, gregarious, funny, sharp, and brilliant, and a great raconteur. Read his dissents, if only on the Obamacare cases and in the Obergefell decision to get a true flavor of the man and his mission.

His struggle in the American legal sphere will go on without his mighty pen and intellect. Not surprisingly, our parallel struggle in the Jewish world will go on as well, a struggle that should engage all Jews and in which we hope to reclaim our brethren for the world of Torah and the true service of G-d.