Friday, February 27, 2004

Judah sent me a great response to my posting about Orthodoxy, homosexuality, and constitutional law. Since he's having computer trouble, he couldn't post it in the comments section. But when I went to do it for him, I discovered that my comments section only lets you post 1,000 characters at a time. I got sick of cutting and pasting, so, since I really like what he wrote, I'm posting it here. Enjoy, and please feel free to comment yourself! If your comment is too long, you can either send your thoughts in a series of postings, or send me an email at

And now for our guest blogger, Judah:

Regarding the gay marriage thing, I have many thoughts, not all in agreement with my esteemed, fellow-Republican, president GWB:

- I do not believe it is the job of the federal government to determine how to define marriage. When the federal government has previously tried to amend the constitution to incorporate moral judgements (prohibition comes immediately to mind) it has failed miserably. Moral judgements, as ridiculous as it might seem to a Jew whose moral code is by definition immutable, are, in a secular society subject to the mores and interpretations at a particular point in time. To change the constitution therefore, does not make sense because you are inevitably leading to changing it back at a later point in time.

- That is not to say that you cannot clarify and codify a law at a specific point in time. Laws are meant to be changed at the whim of legislators which are elected (or voted out of office, as the case may be) every 2-6 years. The electorate of a given municipality can choose how it wants its elected officials to create laws. If the people choose lawmakers who want to define marriage as between a single man and single woman or between a single man and single man, single woman and single woman, single man and multiple women, single woman and multiple men, man and sheep, woman and horse, brother and sister, grandfather and granddaughter (or grandson, of course), mother and son (or daughter) or including/excluding any combination thereof, that is fine, no matter how absurd or abhorrent I personally may consider any of those combinations to be. One concern I would have is that once you start expanding the definition beyond the "traditional", it becomes difficult to determine where to stop and the other combinations I have proffered are all equally defensible. But if the constituents of a given jurisdiction accept the inclusion of some or all of those combinations, so be it.

- The problem today in California is that the citizens of the state voted via public referendum as recently as 2000 that marriage includes a single man and single woman and none of the other combinations (including man/man and woman/woman). In outright defiance of that determiantion by the general public, the mayor of San Francisco (and the courts of Massachusetts, in a similar case) has decided to sanction gay marriage anyway. To my mind, that is an impeachable offense. Why should any elected official be above the law? There is no difference in my mind between what is being done by San Francisco's mayor today and what would be done by a hypothetical state governor who is embezzling funds from the state that elected him/her. For an elected official (or an appointed official such as a judge) who swears to uphold the law as a function and prerequisite of the job, defying the law (no matter how relevant or just one believes it to be) is completely and totally unacceptable and should be met with unrelenting vilification. When President Clinton committed perjury, he was rightfully impeached and should have been convicted, for violating the law he was sworn to uphold. The fact that he may have perjured himself for what some considered a trivial matter is irrelevant. Similarly, when the judge in the Supreme Court of Mississippi chose to keep a monument of the 10 Commandments displayed prominently in the courthouse after a federal appeals court ruled that the monument should come down, the judge was rightfully removed from office for defying the law he was supposed to uphold even though many other constitutional scholars may have thought the display was constitutionally acceptable.

- Why do Orthodox Jews think it is incongruous for someone to be both gay and Orthodox? Ok. That's a flawed question. Better would be to ask why an Orthodox Jew thinks its possible for someone to wear tefillin every morning and solicit prostitutes in the evening (or cheat on taxes, launder money, beat his wife, etc.) and still be considered Orthodox while someone who is honest in business, a kind and understanding person, keeps Shabbos and Kashrus, davens 3 times a day, etc., but happens to be homosexual is not Orthodox. I see an incongruity there. All Orthodox Jews make decisions at various points in time as to what to follow and what not to. I personally am embarrassed to admit that I do things / don't do things that do not conform to normative Orthodox practice. Yet I still consider myself (and I would venture to say that many friends would also consider me) an Orthodox Jew. I think homosexuality should fall into a similar category. Nevertheless many people think it does not. It might be homophobia, it might be that no one has presented the argument in this way, it might be that laundering money is private (until it hits the front page of the NY Post) while homosexuality is publically "flaunted" (not that I agree entirely with the latter characterization).

I happen to think your points are very well stated and make a lot of sense.

Best regards,

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