A few weeks ago, Attorney General Eric Holder, in a letter to Speaker of the House John Boehner, announced that the Department of Justice would no longer defend the Defense of Marriage Act in court. Holder, in the name of the Obama administration, determined that §3 of DOMA (defining marriage—for federal purposes—as between a man and a woman) violates the 5th Amendment (guaranteeing citizens equal status in the eyes of the law). He continued to explain that, because of the nature of the group affected—gays—the law needed to be reviewed with “heightened scrutiny.” On this standard of review, there needs to be an important government interest being furthered by this law. Holder stated that, because the administration deemed there to be no such interest, the Department of Justice would no longer defend the law in court (though the other departments of the executive branch will continue to enforce the act).
What are the actual effects of this decision? One friend of mine, an attorney, found this to be the most powerful progression towards gay rights that we’ve seen so far. I don’t really see that. This certainly sends a strong message to the legislature, Supreme Court and American people that Obama wants to see DOMA repealed. But Congress will go on to defend the act and the pending cases will hopefully find their way to the Supreme Court. This is progress, and will hopefully have some influence on courts’ decisions, but doesn’t really do too much for us right now. Basically, I’m still planning of moving to a state where gay marriage is legal.
The right to marry is very important to me. Though I did not always feel this way, I cannot imagine a future without a husband, someone with whom I will build a life and a family. DOMA was passed with the intent of promoting the religious idea that marriage is a union between one man and one woman. As a secular law, I expect this to be changed. That being said, I do not expect a change in Halacha to permit gay marriage, only secular marriage.
A few months ago, I attended a panel discussion regarding the respective attitudes of Reform, Conservative and Orthodox Judaism towards gay marriage. The divisions were pretty clear: the Orthodox rabbi saw no room for such a union within society; the Conservative rabbi was more open, expressing willingness to marry two Jews regardless of their sex; the Reform rabbi was willing to marry anyone, including intermarriages. I respect each of these opinions as they each correspond to the respective sect’s interpretation of the Torah. I agree with the Orthodox stance that, from a religious point of view, marriage is defined as between a man and a woman. Specifically, between a heterosexual man and a heterosexual woman. However, the religious attitude should not encroach on my right to marry as a citizen in a secular state. I also disagree with the contention that, because this is the theological definition of marriage, homosexual men and women should be forced into unions that meet this definition. If you are reading this blog, you have probably seen a number of other authors discussing the same point recently.
The Israeli newspaper Haaretz recently published an article about an attempt by some right-wing Israelis to wed gay men to lesbian women so that the couples would be able to procreate (through medical intervention) and lead “normal” lives. Some of the couples married through this initiative are divorcing one another. One of the “successes” described their relationship as platonic, compared it to a business relationship and said they chose this path because of their commitment not to violate Halachic prohibitions of gay sex and their desire to raise children.
The rabbi spearheading this movement recognizes that some of the individuals he marries do slip up and have relations with members of the same sex. He doesn’t, however, “see this as a betrayal. Generally, it's between them and their Creator." He is also quoted as saying that “a family isn't just sex and love. It's an instrumental partnership, though not just a technical one."
As a young man to whom a similar route was suggested, I am shocked and disturbed that there is now an organized front enabling these unions. What I see when I read articles like this is a misconception that I had emphasized before: automatically correlating a same-sex relationship with a sin. This is not always the case. Moreover, we are willing to recognize that the act of one who transgresses Halacha is “between them and their Creator.” I respect and condone the religious desire to help one shy away from sinning, which, I believe, is the intent of this rabbi. I disagree with his chosen approach. First of all, the individuals “slip up.” He recognizes this. Second of all, in his zealous attempt to purge society of one sin, he is filling it with another. Midvar Sheker Tirchak- Stay away from false words. These marriages are lies and promote a culture of dishonesty. Marriages such as these send a message to gay men and women around the world that the only way to live a religious life is to deny their true emotions enter in a heterosexual marriage. This is the very same course of action the rabbis and lay leaders around the US and the world decried in the Statement of Principles last year (¶12).
Furthermore, same-sex relationships are now capable of meeting the “instrumentality” aspect of a marriage. The view that marriages are only recognizable if they can satisfy the requirement of procreation no longer preempts same sex unions. Thanks to technology, adoption and the foster care system, there is a growing number of religious same sex Jews who are raising children together. While these sham marriages are capable of producing children, they are lacking in the sex and love elements of a union and fail to meet the standard of marriage proposed by their advocates.