Orthodoxy and Same-Sex Marriage

As the JTA reports, the Orthodox Union opposed New York's recent measure legalizing same-sex marriage. But might one Orthodox rabbi have exerted a degree of influence in favor of the law's passage?

Possibly. Influence is difficult to measure, and the decision ultimately rested in the mind and heart of each state senator... but possibly. Zeek reprints an open letter from Rabbi Steven Greenberg, the first openly gay Orthodox rabbi, to Sen. Steven Saland of Poughkeepsie, one of the two crucial Republican swing votes. In the letter, Rabbi Greenberg appeals to the memory of Saland's rabbinic ancestor, Rabbi Shmuel Salant -- a tactic shared by Agudath Israel in their own appeal to the senator, from the opposing side.

Whether Rabbi Greenberg and the Agudah had any impact or not, Saland voted for the measure in the end, putting the legislative question to rest in the state of New York. But within Orthodox Judaism, the question of how to relate to the modern world's ever-solidifying acceptance of homosexuality will continue for many years to come. Rabbi Greenberg, of course, is a significant voice in this internal debate, as are other gay Orthodox Jews, whose personal experiences make this issue impossible to ignore.

Yet, for all the consternation that this issue understandably causes in Orthodoxy when it comes to questions of halakhah, ritual, and other internal matters, it is somewhat baffling that Orthodox Jews should feel the need to maintain a correspondence between secular and religious definitions of marriage. As Rabbi Michael Broyde and Rabbi Shlomo Brody point out in the context of an article articulating a clear and strict opposition to homosexual sex,

Politics makes strange bedfellows, especially in multicultural democratic societies like America. The pragmatic decision to support equal rights for gays in the political realm is not inconsistent with our view that the underlining activity violates Jewish (and Noachide) law. We support religious freedom for all, even as we are aware that some might use this freedom to violate Jewish or Noachide law. Similarly, it is wise to support workplace policies of non-discrimination based on sexual orientation, just as we support such non-discrimination based on religion, even though these laws equally protect, for example, pagans. Discrimination based on lifestyle choices may threaten our own liberties, including freedom of religious expression... 

Rabbis Broyde and Brody go on to specify that both political opposition to and political support for same-sex legal marriage are within the realm of reasonable Orthodox choice:

If one believes a civil prohibition of same-sex marriage does not threaten our rights in the long term, then joining a political alliance opposing such, based on shared values or interests, seems reasonable. If, however, one views such a campaign as an infringement of civil liberties, or a potentially bad precedent that might endanger our interests in other areas of civil life, then one should not feel compelled to combat gay marriage.

If this is not a ringing endorsement of civil marriage equality, neither is it the stance of clear opposition taken by the Orthodox Union.

The Orthodox argument in favor of maximum liberty is not a recent invention; as the blog Failed Messiah notes, Rabbi Moshe Feinstein was essentially anti-abortion (except to save the life of the mother), and yet also essentially pro-choice. "In Rabbi Feinstein's view, the decision to abort was a decision that should be made by the woman and her rabbi, not by Congress."

Ultimately, as homosexuality becomes increasingly normalized in the broader world, Orthodoxy's internal and external stances on this issue will be increasingly tested and challenged.

Nov eNews: LGBT issues in the Jewish Community

Dear Friends,

These past months have seen a great deal of public and Jewish discussion on LGBT issues. There have been political struggles around 'Don't Ask, Don't Tell' and Proposition 8, controversy over the publication of a gay wedding announcement in the New Jersey Jewish Standard, and, tragically, a recent spate of suicides by young men. With the help of some fantastic content-sharing with organizations such as Keshet, the Union for Reform Judaism, TransTorah, and the Institute for Judaism and Sexual Orientation at HUC-JIR, BJPA now contains over 130 documents on LGBT Issues in the Jewish community.

The issue of acceptance and marginalization of Lesbians and Gays has been on the American Jewish agenda for decades. The language of the Reform movement's National Federation of Temple Sisterhoods, the predecessor of Women of Reform Judaism, in their 1965 resolution on Homosexuality is both familiar - strongly resembling the recent Orthodox "Statement of Principles on the Place of Jews With a Homosexual Orientation in Our Community - and jarring : "...homosexuality may be a symptom of psychiatric disturbance which requires sympathetic understanding and psychiatric evaluation...We, therefore, deplore the tendency on the part of community authorities to harass homosexuals." Twenty years later, the Journal of Jewish Communal Service noted that 43% of straight Jews were disturbed by the "rise in visibility of gay Jews," while 49% were not.

In the 1970s and 1980s, communities began to address the religious responses to issues arising from social changes. For example, the Reform movement came down against the formation of Gay and Lesbian congregations (1973) and religious marriage for homosexuals (1985), but in favor of the acceptance of homosexual converts (1982) and in favor of an end to legal discrimination against homosexuals (1977). Our earliest reference to Gay and Lesbian families is a 1986 Reform responsum about the issue of lesbian parents at their child's bar mitzvah.


Starting in the late 70s, more Jewish organizations openly addressed and confronted the challenges brought about by changing social norms. As early as 1976, Chicago's Jewish Family and Community Service took proactive steps to adapt their professional skills and knowledge in response to "changing lifestyles" including an increase in the number of homosexuals seeking counseling. Gerald Bubis included "homophiles" in the category of "experimental families" to be considered in thinking about The Jewish Community Center's Responsibility for the Needs of the Jewish Family (1975). In Resolving Ethical Dilemmas in the Jewish Community Center, Norman Linzer recounts how the Centers came to the conclusion of offering programs "to the families of gays but not for the gays themselves." In 1997, the Journal of Jewish Communal Service explored the Ethics of Gay and Lesbian Adoptions and specifically the question of Jewish children being adopted into gay and lesbian homes. Just last week, Rabbi Shmuley Boteach explored the same question on The Huffington Post.


Several movements and organizations have moved toward greater recognition and acceptance. In 1989, the Union for Reform Judaism's resolution on Gay and Lesbian Jews stated: "Our union of congregations must be a place where loneliness and suffering and exile end." Since then, a growing collection of literature has emerged on how to create inclusive Jewish spaces, from the Jewish Reconstructionist Federation's "Becoming a "Kehillah Mekabelet" (a "welcoming congregation") (1998), to Rabbi Steven Greenberg's Inclusion and Welcoming Criteria for Orthodox Synagogues (2004), TransTorah's Making Your Jewish Congregation or Community More Transgender Friendly and the Union for Reform Judaism's 18 Ways to Make Lesbian, Gay, Bisexual and Transgender Members Feel Welcome in Your Congregation 

Jewish organizations have also joined in on the political battles around LGBT issues, such as discrimination in the military (1991) and the Boy Scouts (2001). The Jewish community has been a particularly strong voice on the legislation of same-sex civil marriage. The Conservative (2006), Reform (1996), Reconstructionist (2004), and Humanistic (2004) movements have published resolutions in support while the Orthodox Union has consistently expressed concern (1999) and opposition (2006).

In recent years, the community has begun the serious study of Gay and Lesbian Jews as a demographic, a topic I have had the opportunity to explore in my own work, including Gay, Jewish, or Both? Sexual Orientation and Jewish Engagement (2009) and Gays, Lesbians, and the Conservative Movement: The JTS Survey of Conservative Clergy, Students, Professionals, and Lay Leaders (2007). Other key publications on this subject include LGBT Alliance Study: Needs Assessment of the San Francisco Bay Area LGBT Jewish Community (2010) and We Are You: An Exploration of Lesbian, Gay, Bisexual and Transgender Issues in Colorado's Jewish Community (2006).

Our communities have been and continue to be diverse in composition and in values, but I think that we share a commitment to the sacredness of life. The Berman Jewish Policy Archive @ NYU Wagner has endorsed Keshet's grassroots campaign, "Do Not Stand Idly By: A Jewish Community Pledge to Save Lives," launched in response to the suicides of Raymond Chase (age 19), Tyler Clementi (age 18), Justin Aaberg (age 15), Asher Brown (age 13), and Seth Walsh (age 13). The campaign calls on individuals and organizationt to commit to "ending homophobic bullying or harassment of any kind in our synagogues, schools, organizations, and communities." 

With best wishes,
Prof. Steven M. Cohen
Director, Berman Jewish Policy Archive @ NYU Wagner

What happened to Rabbi Solomon Freehof?

(This blog entry expands on one of the pieces noted in our November newsletter on LGBT issues in the American Jewish community. Don't miss it!)

In 1973, Rabbi Solomon B. Freehof wrote a responsum on the permissibility of Gay and Lesbian synagogues for the Reform movement. His position must have been at least somewhat unsurprising at the time, but looking back makes it clear how far the Reform movement has come in the last forty years:

 To sum up: Homosexuality is deemed in Jewish tradition to be a sin--not only in law, but in Jewish life practice. Nevertheless, it would be in direct contradiction to Jewish law to keep sinners out of the congregation. To isolate them into a separate congregation and thus increase their mutual availability is certainly wrong. It is hardly worth mentioning that to officiate at a so-called "marriage" of two homosexuals and to describe their mode of life as "Kiddushin" (i.e., sacred in Judaism) is a contravention of all that is respected in Jewish life.

Rabbi Freehof was born in 1892 and must have been about 81 years old when he wrote those words. By then, he'd already served as president of the Central Conference of American Rabbis and the World Union for Progressive Judaism. He was also a congregational Rabbi in Pittsburgh for more than thirty-five years. He lived until he was 97.

In 1990, the year he died, the Reform movement issued Report of the CCAR Ad Hoc Committee on Homosexuality and the Rabbinate. By then, the movement had issued resolution recognizing the Human Rights of Homosexuals, Hebrew Union College officially admitted out Gay and Lesbian students, and there was support in the Reform rabbinate, albeit minority support, for religious gay marriage.

I wonder what he would have thought, if he had made it to 120, of where the Reform movement is today.

"Rabbi Freehof's positions on other issues are significantly more liberal. He supported women wearing a prayer shawl, for example, in part because "in our Reform movement . . . special emphasis is placed on the equality of men and women," and permitted gentiles who wished to to wear a prayer shawl in synagogue "for the sake of peace." This year, the Freehof Institute for Progressive Halacha, founded in 1989, is holding its annual symposium on the subject of bioethics."

Negotiating Civil Liberties: Inclusion for Some

Last week, Lynn Schusterman, chair of the Charles and Lynn Schusterman Family Foundation, wrote an op-ed, "Embrace LGBT Jews as vital members of the community" calling on Jewish organizations to enact non-discrimination hiring policies that specifically mention sexual orientation, and called on funders to make their support contingent on the adoption and practice of such policies.

Adopting formal non-discrimination policies -- and ensuring their implementation -- will help us achieve two goals: 1, they will indicate to LGBT individuals that the Jewish community is committed to full LGBT inclusion; and 2, they will guarantee that our institutions are walking the talk when it comes to being welcoming and diverse.

This week, Nathan Diament, director of the Institute for Public Affairs of the Orthodox Union, wrote a response, "Don’t exclude in the name of inclusion", arguing that the religious values of Orthodox organizations require them to practice discriminatory hiring based on sexual orientation. Therefore,  Schusterman's suggestion, if fully enacted, would result in a severe reduction of funding to Orthodox institutions.


As it happens, the government of the United States of America has this same problem!

For over a decade, some in Congress have been trying to pass ENDA (Employment Non-Discrimination Act), an act that makes sexual orientation and gender identity protected grounds for non-discrimination. As Schusterman, notes, thousands of Jews have lobbied in support of that act. As Diament notes, some of those Jews lobbied in support of an exception for religious organizations to permit them to keep legally discriminating based on sexual orientation and gender identity. (That exception is incorporated into the current version of the act).

According to Diament, that exception "protects the right of religious communities to make their own employment decisions in this sensitive area.” In contrast, Schusterman's proposal to Jewish donors would "admittedly in the private sphere, champion gay rights over religious liberty without even acknowledging the competing values, let alone trying to strike a balance between them" and "expand some civil rights at the expense of others." In effect, he accuses Schusterman of hypocrisy.

In fact, several Jewish organizations (Anti-Defamation League, Jewish Council for Public Affairs, and the National Council of Jewish Women) recently collaborated on an amicus brief[pdf] (in a case about whether universities that receive government funding could provide support to student groups that practice discrimination), and specifically mentioned the spectre of the exemption of religious organizations that receive federal funding from non-discrimination requirements as an outcome to be avoided (in that case, discrimination based on religion, as opposed to sexuality).

So Shusterman is advocating for the same policy for Jewish funders as these Jewish organizations advocated for government funders. On the other hand, the Union of Orthodox Congregations of America and Agudath Israel of America supported the opposing amicus brief[pdf].

I don't see hypocrisy here - I see different (and consistent) views on how the balance between religious liberty and gay rights (as Diament puts it) should be struck. The ADL, JCPA, and NCJW strike in favor of gay rights, and the OU and Agudath Israel strike in favor of religious liberties.

Because what Diament obscures ("The Orthodox Union is on record supporting carefully crafted initiatives that seek to ensure principles of tolerance, anti-discrimination and the fair treatment of all citizens") is that only one value can predominate. In both cases, CLS v. Martinez, and in the case of Shusterman's proposal, the OU is on the record supporting religious liberties over gay rights.

The OU's consistent position, whether with regard to public or private funding, makes it less surprising that would Diament would uncritically equate an act of the federal government to the act of a private organization. One key difference, of course, is that if Schusterman's proposal were enacted, Orthodox institutions could continue to seek funding from Orthodox donors whereas religious organizations could not so easily escape the jurisdiction of the American government.

But there is an even bigger problem with Diament's conflation of the religious liberties of religious organizations versus the government and the religious liberties Orthodox organizations versus private Jewish funders:

Diament is in fact arguing is that religious liberty should allow Orthodox Jews to discriminate against gays and lesbians, but that private Jewish (non-Orthodox) funders should not have the religious liberty to 'discriminate' in favor of civil rights for gays and lesbians.

This position holds water if you believe that Orthodox Judaism represents a legitimate religious conviction worthy of protection and non-Orthodox Judaism does not.

Diament also makes an ethical/fraternal argument that Jews who donate to Jewish organizations (whether $5 to their local federation or $2M in the care of their own foundation) have an obligation to support Orthodox institutions that discriminate against lesbians and gays - not doing so would "inflict real harm upon many already underfunded schools and other charities and those they serve [and] would drive a wedge through the heart of those institutions designed to bring our diverse community together." Yet, he makes no argument that Orthodox funding should support Jewish GLBT organizations and is actually arguing that Orthodox institutions must have the right to discriminate against lesbian and gay Jews.

This position holds water if you believe that supporting and including Orthodox Jews is more important than supporting and including gay and lesbian Jews.

I (personally) would suggest (beg, plead, shout, implore) that Lynn Schusterman and others not accept Diament's closing instruction that they must, "if their real goal is liberty and justice for all," follow the example of the Orthodox Union.

(Finally, I invite you to peruse some of BJPA's materials on religious liberty and human rights and LGBT issues which cover a fair variety of perspectives, whereas the opinions here are mine alone).

[Cross-posted at Jewschool]

More on Jewish Lesbians

Just after I mentioned this 1999 study on Jewish lesbians in Toronto - Alienated Jews: What about Outreach to Jewish Lesbians? I heard about the launch of a new anthology, Keep Your Wives Away From Them: Orthodox Women, Unorthodox Desires (straight from the lips of TheWanderingJew, who reports further on the launch's success over at Jewschool). That anthology deals specifically with the stories and experiences of women who identify as Orthodox, and it looks fascinating.

There has been a gratifiyingly large amount of work done on LGBT issues and inclusion in the Jewish community (BJPA has a growing collection), but much of it does tend to treat gay and bisexual men and women's experiences together, as though they were identical (and sometimes doesn't treat the T part of the phrase at all). Sometimes it is completely appropriate to not make distinctions, other times, more problematic, such as when the Rabbinical Assembly's Committee on Jewish Law and Standards insisted on voting teshuvot which addressed gay men's and women's ordinations at the same time, even though the halachic issues involved diverge signifcantly.

Every study is limited by all kinds of real world considerations, and generally each new study is a valuable contribution. It is still disappointing that the 2009 study, Gay, Jewish, or Both? Sexual Orientation and Jewish Engagement, made no attempt to study the differences between men's and women's Jewish experiences and choices, except to note that "Men are about twice as likely as women to report that they are gay or bisexual (9.3% versus 4.5%)."