The Conservative Movement, based on its official pronouncements on gay & lesbian people serving as rabbis and teachers, being welcomed in its congregations, and enjoying legal protection from discrimination in civil society, has been accused of hemming and hawing. I would like to go on record with my position on same-sex marriage, without any hemming, but perhaps with a bit of hawing.
Some in the religious community, particularly Christians, have voiced opposition to same-sex marriage or registered civil unions because it would detract from the sanctity of conventional marriage. As much as I have tried to understand that concern, I must confess that I do not grasp it. There is a difference between a Jewish marriage (nisuin or qiddushin) and a civil or other non-Jewish religious marriage. Jewish law has a large set of rules that apply to a Jewish marriage. Among them are prohibitions on adultery (for man and woman), requirements for and limits on sexual availability, and rules for termination (gerushin). Other religious marriages and civil marriages are governed by other sets of rules. In the case of civil marriage, these rules have to do primarily with taxation, inheritance, property rights, medical and pension decisions and benefits, and children. Most states' definitions of marriage do not require exclusivity of sexual or romantic relations or other particulars. While a civil marriage or other religious marriage may truly attain a level of holiness, it is not the same as a Jewish marriage.
To be clear, I am not claiming that a Jewish marriage is superior to any other form; I am simply stating that it is different. Indeed, Jewish marriage law has developed over the centuries, eventually responding to changing social conditions and sometimes learning from other societies. Most dramatically, Jewish marriage laws, as reflected in the revised ketuba, were updated by Shimon ben Shetạh in the first century BCE.
Connecticut law requires that any “religious” marriage be recorded with the State (General Statutes, Ch. 815e, Sec. 46b-22). This makes a religious marriage subject to the laws of the State, but does not make a State marriage subject to the laws of any religion. Is this requirement for the benefit of the State, or for the benefit of the couple? What is the State's interest?
A Christian or other religious marriage has a set of rules, customs and expectations that defines and governs the marriage, and that goes beyond the civil definition of marriage. Religious marriages are distinct from the civil Las Vegas marriage, which can be licensed, recorded and terminated within a span of days. While the government may recognize all of these as “marriages,” they are not quite the same.
Why should the state recognize any marriage? Our answer to this question determines our position on same-sex marriage. The state's reason cannot be to help the religious communities enforce their doctrines or value systems. If the state recognizes any marriage, it must have a purpose that helps the broad public without infringing on our liberties or harming a segment of our population.
As far as I can see, the state finds it advantageous to have a conventional set of rules for taxation, inheritance and the like to apply to a “couple.” It really does not matter to the state if that couple is living according to Catholic ideals, halakha, or their own private set of “commitments” that they have made to each other. For that reason, I have no more objection to the state calling the commitment between a same-sex couple “marriage” as I do to any of the other religious or civil relationships that are called by that name. But if it is found that it harms the religious sentiments of many Americans to share the word “marriage” with a same-sex couple, then perhaps the state should simply stop using the word “marriage” for anyone and instead define “civil partnerships.” Let the battle over the word “marriage” be fought on the battlegrounds of the religious communities (including our own), where the symbolism is of utmost importance, not in the civic arena, where tax policy, inheritance and medical benefits are at stake.
In 1950, 80% of American households contained a married couple; today, 50% of households contain a man and woman married to each other. Many adults are choosing not to marry by anyone's definition. For some, marriage means losing a deceased spouse's pension, medical or Social Security benefits. For others, marriage risks compromising their tax status or estate plan. For some, marriage represents a commitment fraught with obligations, expectations, conventions and entanglements that are not worth the effort, or represents a social order they do not support. For others, marriage is prohibited by church rule or halakhic requirement, or is simply unavailable for reasons of state or federal law. Others would like to get married, but have not found a suitable partner. As Rabbi Yoḥanan says, “Finding a suitable marriage partner makes splitting the Red Sea look easy” (Sota 2a) (אמר ר׳ יוחנן וקשין לזווגן כקריעת ים סוף).
While there are many gay and lesbian people who would like the conventional status of “marriage,” there are also many who do not want their relationship associated with any of the various relationships called “marriage” in America. Still others do not feel safe having their names in what would constitute a government registry of gay and lesbian people. But they should be able to decide that for themselves.
I for one am very happy to be married, and find that the many benefits outweigh the liabilities. For me, the advantages accrue primarily from the framework of Jewish marriage, not from the state's recognition of our relationship. Perhaps someday my beloved wife will benefit from Social Security survivor benefits based on my contribution, but I'm not counting on it. That is a reflection of my lack of confidence in my government, not in my wife. Nevertheless, I believe that others should enjoy the same state-backed benefits of marriage that we do, and that it should be a matter of their own choice.
See also,
"Just Don't Call It Marriage," by Carole Bass (New Haven Advocate, 04 March 2004)
©Jon-Jay Tilsen, December 2003