Jews, Marriage, and Religious Freedom

The same traits and tendencies that make Orthodox Jews appear uninvolved in political battles have also helped them preserve the belief that marriage is the union of one man and one woman.

In the period before and after the US Supreme Court’s same-sex marriage decision in 2015, Christians played a central role in the fight to defend marriage and religious liberty. But where do Jews stand?

In a recent article in the Jewish magazine Mosaic, Bruce Abramson pointed out that America’s Jewish population seems too quiet when it comes to religious liberty issues, and urged them to become more audible. One reason for Abramson’s impression that American Jews are sitting out this fight is that the liberal, non-religious branches of Judaism—people such as Bernie Sanders, Noam Chomsky, and Jon Stewart, who have no great interest in religious freedom—are the main face of Judaism in America. The Orthodox are off the radar. However, contrary to appearances, it is not true that the Orthodox have been uninvolved in the fight to preserve marriage and religious liberty.

Much of Orthodoxy is about creating separation: separation between the sacred and the profane; the unclean and the clean; male and female; the permitted and the forbidden. In fact, the most basic principles of Orthodoxy run counter to the moral egalitarianism that engendered the same-sex-marriage concept. The Orthodox separate meat from milk, kosher from non-kosher, and the Sabbath from the week. To them, it is clear that some behavior is accepted and cherished, while other behavior is abhorrent and reviled. When same-sex-marriage advocates fish for hypocrisy by mockingly asking, “Well, do you not eat shrimp or cut your beard?” the Orthodox say, “No, we don’t.”

The same traits and tendencies that make the Orthodox appear uninvolved have also helped them preserve a firmly held belief that marriage is the union of one man and one woman.

Orthodox Jewish Demographics and Culture

Orthodox Jews seem less visible in part because they are very geographically concentrated, mostly in New York and New Jersey. Ultra-Orthodox, Chassidic, and Yeshiva communities comprise about 700,000 people, according to the Jerusalem Center for Public Affairs. Though Orthodox Jews constitute the smallest of the three major denominational movements, they are much younger, on average, and they tend to have much larger families than is typical in the aggregate Jewish population. This suggests that they will grow as a percentage of the Jewish population.

The Orthodox are not consumers of popular culture. In fact, they have consciously distanced themselves from it, and most have been trained in other forms of thinking. They have separate school systems and institutions of higher learning; they read Orthodox newspapers and magazines and books published by Orthodox publishers. So, from the start, the members of these various Orthodox sects are not primed for compliance with “politically correct” ideology. They avoid the mantras pushing same-sex marriage. For them, words such as “freedom,” “love,” and “equality” have not been emptied of meaning and repackaged.

They have a very different cultural history from the broader American population. It is important to remember that Orthodox communities include a significant number of the children and grandchildren of Holocaust survivors. Even now, these descendants are influenced by the experiences of their ancestors. They recognize red flags in “groupthink,” the variety that directly attacks religious institutions and attempts to silence or discredit people of faith. They have a sense of déjà vu as they watch the “new” moral egalitarianism launch attacks against Christians.

As University of Virginia history professor Alon Corfino has pointed out, the Holocaust started with Bible burning. Biblical moral standards had to be suppressed to make way for the new morality of Aryan supremacy, which sought to be the sole source of moral authority.

Orthodox Judaism, the Sexual Revolution, and Civil Rights

In seeking to strip away the cultural influence of Scripture as a moral authority, postmodern sexual-identity politics relies on historical and moral egalitarianism. The equality argument siphons emotional fuel from the Civil Rights and women’s rights movements, falsely equating LGBT citizens with African-Americans and women.

In the 1960s, when the Civil Rights movement was at its height, many Jews in America had recently emigrated from Europe; almost all had lost their families. Orthodox communities were still reeling from the effects of the Holocaust, trying to establish schools and communities, acquiring citizenship, and learning some English. The appropriated cultural trope of civil rights is a key that never had a lock to turn.

Similarly, Orthodox Jews avoided most of the sexual revolution and women’s liberation movements. The emphasis on sexual pleasure and “freedom” was not embraced in their communities. In turn, they did not have the surge in divorce rates or the rise of single mothers that have come to characterize mainstream American culture. The family remained intact, since the ideas of sexual “freedom,” with its emphasis on pleasure, attraction, and identity, were not acted out. The assertion that there are “all different types of families” has no grounds in the reality of such communities, except in isolated and tragic situations.

The postmodern notion of “sexual identity” runs counter to thousands of years of Jewish thought. Identity is not based in personal feeling but rooted in immutable and verifiable legacy. Given that marriage centers on raising children, the identity of a married man and woman is that of father and mother to their children.

Marriage in the Orthodox Tradition

In Orthodoxy, marriage is first and foremost procreative. The same-sex marriage argument that “love is love” has no traction in this context, since love alone is not the basis of marriage. The Talmud Sanhedrin 58a interprets the Bible’s concept of marriage: “And a man shall cleave to his wife, and they will become one flesh” (Gen. 2:24). On the physical level, the concept of a “one-flesh union” refers not only to conjugal intimacy but more importantly—as the medieval commentator Rashi stressed—to the resulting creation of the child, whose one flesh brings together the physical and the spiritual aspects of his or her parents. The procreative purpose of marriage requires a gender-diverse, sexually complementary couple, and the children who are created through this union need both a mother and a father.

For the Orthodox, marriage follows community standards and religious laws. Many marriages are “shiddachs” made by matchmakers. Marriage is studied and clearly defined as a physical and spiritual relationship between a man and a woman; being “in love” and feeling sexual attraction do not need to precede marriage.

Same-sex couples can’t claim special status. In Orthodox Judaism, there are many forbidden marriages and sexual pairings. Most familiar to most people is the rule that a Jew cannot marry a non-Jew. There are others; a “kohen” (a descendant of the high priests) can’t marry a divorcee, and a person of illegimate birth can’t marry a person of legitimate birth. Because of all these religious laws that are observed, Orthodox wedding vendors have experience in refusal of services, which may give the activists using weddings vendors pause. In addition, Jewish vendors are more insulated in their communities; they can and will pick up the phone and call the Rabbi for support. Precedents have been set by vendors who have refused service for all kinds of reasons that conflicted with religious laws. One well-known case involved belly dancers at the wedding as entertainment.

Because of these cultural and demographic factors, it is harder for gay activists and their legal representatives to legally target insulated Orthodox Jews and their businesses, as they have Christian wedding vendors. However, this has begun to happen, and more cases are likely to arise soon. As national Orthodox organization Agudath Israel noted in its Amicus Brief in the Obergefell case,

The Orthodox Jewish community that we represent is likely to also encounter some of those conflicts. In fact, our organization has personal knowledge of such an incident. In a local Jewish community in Maryland, a kosher certification agency was compelled to certify the kosher status of a gay wedding out of fear of a discrimination lawsuit. This is but one example of the liability exposure dissenting religious adherents and institutions might face as a result of a judicial recognition of same-sex marriage.

Even the most basic knowledge of the Talmud would teach one that exorbitantly expensive kosher food at a forbidden, unrecognized ceremony is like a gold ring in a sow’s nose.

Orthodox Jews and American Courts

Although you may not hear about it on the news, the Orthodox are in the courts fighting for religious freedom on many fronts. Over the past few years, there has been litigation in a range of religious liberty cases involving Orthodox Jews. Some concerned religious education or discriminatory zoning laws, others the right to perform Bris Milah (infant circumcision). A recent case asserted the right of Rebbitizns (wives of Rabbis, some of whom serve as community spiritual counselors to other women) to refuse to disclose in a secular court what was said in spiritual counseling.

Most of the cases that have arisen so far were forced by the same “progressive” groups that brought us “marriage equality,” including the American Civil Liberties Union, the Southern Poverty Law Center, and the New York State Departments of Education and Health. The argument put before the courts is usually that a tradition needs to be abandoned “for the sake of the children.” If the state can control circumcision—which is a Jew’s covenant with God—because it causes “harm to children,” the next step is to accuse people who believe that marriage is between a man and a woman of also causing “harm to children” through their reactionary views.

In general, these suits seek to chip away at the First Amendment by restricting religious rights to clergy and to places of worship or private homes. Such litigation also seeks to replace parental decisions and values with that of the state. And it has gotten ugly. Two prominent pro-religious liberty organizations, the Alliance Defending Freedom and the Becket Fund for Religious Liberty, have filed amicus briefs in cases challenging regulations that target Orthodox Jewish practice, particularly Bris Milah, ritual infant circumcision. Though they may initially seem unrelated, the hostility that surrounds Orthodox Jewish practice is related to same-sex marriage and the general assault it brought on people of faith.

In addition to its amicus brief, Agudath Israel also issued a public statement in response to the Obergefell ruling. The two other national organizations for Orthodox Jewry—the Rabbinical Council of America (RCA) and the Orthodox Union—also issued public statements decrying the ruling. Immediately after the same-sex marriage ruling was announced, the Orthodox Union asked:

In the wake of today’s ruling, we now turn to the next critical question for our community, and other traditional faith communities – will American law continue to uphold and embody principles of religious liberty and diversity, and will the laws implementing today’s ruling and other expansions of civil rights for LGBT Americans contain appropriate accommodations and exemptions for institutions and individuals who abide by religious teachings that limit their ability to support same-sex relationships?

Making the Case for Faith and Freedom

In spite of the active role of the Orthodox in fighting for religious freedom in the courtroom, the political reticence that Mosaic’s Bruce Abramson detects is based on reality. The reason one doesn’t often hear Jews loudly defending marriage and religious liberty in political fights is due to the difference in political styles between the non-observant assimilated Americanized secular Jews and the Orthodox.

Orthodoxy is an introspective religion, and its adherents are generally reluctant to step into the public sphere. By contrast, the same-sex-marriage campaign was the epitome of pop culture and publicity. The movement used emotionally charged attention-getting strategies, which played out very publicly in the media and used popular culture as a marketing device. Their self-imposed isolation from popular culture and their rigorous education have made the Orthodox immune to the sound-bite arguments, emotional appeals, and “love can’t wait” narratives that quickly swayed cliché-primed Americans. But they have also made them appear absent from the public square, since the Orthodox do not engage in such media-driven campaigns.

Still, for those who take their Jewish faith seriously, there are compelling reasons to act in defense of marriage. As Rabbi Leonard Matanky, president of the RCA, has put it,

We remind all Americans of faith, Jewish and non-Jewish, that no court can change God’s immutable law. We will redouble our efforts to use persuasion to make the case for God’s eternal truths about the nuclear family and the bond between husband and wife. We stand committed not to lose faith in faith itself, and hope that others who cherish God’s teaching will join us.

As George Orwell once observed, “Political language is designed to make lies sound truthful and murder respectable.” The words “discrimination,” “equality,” “tolerance,” and “love” are powerful tools of rhetoric. As Christians are legally targeted, businesses are bankrupted, and people are fired and harassed for their religious beliefs, it is increasingly clear for all people of faith that backing down in the face of this new “civil rights” movement is simply not an option.

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