Gay Marriage and ‘Religious Freedom’


By Jay Michaelson

Published August 18, 2010, issue of August 27, 2010.
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The historic decision striking down California’s Proposition 8 affirms what many of us in the movement for GLBT equality have known all along: The fight over gay marriage is really a battle about whether we want religion to dictate our laws.

Take away all the pseudo-sociology, the unsubstantiated (and demonstrably false) claims about how children do better when raised by mixed-gender couples and the understandable fear of change. What’s left over, Judge Vaughn Walker observed in Perry v. Schwarzenegger, is a religiously motivated feeling that homosexuality is immoral. This is why Prop. 8 did not even pass the lenient “rational basis” standard of review — because religious animus is not a rational basis for making law.

In other words, this debate is not about families, child welfare or any other secular value. Instead, same-sex marriage is a battleground in the much larger debates about the proper relationship between religion and state.

No wonder, then, that the majority of American Jews have shown support for gay rights. It’s not necessarily that our community is so much more enlightened or tolerant than others; it’s that we know religious coercion when we see it.

The great exception to this near-consensus among American Jews is the Orthodox community. Indeed, in responding to the ruling in Perry, the Orthodox Union stated that it was “disappointed.” Why? Not merely because of its “religious values” — which, the O.U. was quick to claim, “we do not seek to impose on anyone.” Rather, the O.U. said, it is upset because the decision threatens “the fundamental civil right of religious freedom.”

Really? What religious freedom is threatened by my ability to marry my partner? The freedom to control my life?

Well, no, according to the O.U. What, then? They haven’t really said, preferring to issue vague, ominous pronouncements: “Already, in states with same-sex civil unions and similar laws, religious institutions, including churches, social service providers and youth groups have been penalized by authorities for their beliefs,” the O.U. stated.

Penalized how? The O.U. doesn’t say.

Surely, vague threats such as these lead some people to believe the worst. Will yeshivas be compelled to teach about David and Jonathan’s same-sex marriage (1 Samuel 18:21) alongside Abraham, Sarah and Hagar’s polygamous one? No — no one is suggesting that. Will Orthodox rabbis be forced to perform gay weddings? Even the O.U.’s public policy director, Nathan Diament, has conceded: “you can’t have a basic understanding of the First Amendment and think that.”

So what kind of “penalty” are we talking about?

Maybe the answer is financial. Orthodox yeshivas, charities and communal institutions now receive millions of dollars from the federal government for faith-based initiatives, educational aid and other programs. These institutions might well be “penalized” for not recognizing the eligibility of same-sex spouses of their employees for benefits, just like school groups at public universities are required adhere to basic nondiscrimination rules.

Of course, they could just forego the cash if they don’t like the strings attached. No cash, no problem: Religious institutions are almost always exempted from non-discrimination rules, unless they want benefits from the government. Then again, it is a lot of cash.

Or maybe there’s another reason. Surely, notwithstanding the O.U.’s rhetoric, the real issue here is what kind of America we want to live in. Gay rights, women’s rights, abortion rights — these are symbols of a much larger, much older conflict about the limits of intertwining church and state, about how much we want religious values to inform civil law.

And in that struggle, our Orthodox brothers’ anti-separationism is misguided. Since the days of George Washington’s letter to the Hebrew Congregation of Newport, American Jews have thrived precisely because our country keeps religion and state apart. No doubt this is why the O.U. is an outlier in the Jewish community: because most of us understand that religious minorities benefit from more separation, not less. Same-sex marriage doesn’t curtail religious liberty; it protects it, by limiting the unholy shatnez of church and state.

Whatever our religious values, the existence of a secular public space — including same-sex marriage, the right to control one’s own body and, perhaps one day, equality of the sexes — does not intrude upon the rights of minority religions such as ours. On the contrary, it strengthens them.

Jay Michaelson is founder of Nehirim: GLBT Jewish Culture & Spirituality and the author of a forthcoming book on the religious case for gay rights. He writes “The Polymath” column for the Forward and was recently a visiting assistant professor of law and religion at Boston University School of Law.

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