Aguda and Prop 8: a little mercy


I have covered, from time to time, gay marriage and its implications while at the same time supporting it. I hope the little reporting I’ve done has been above reproach; it’s foolish to believe that reporters don’t have opinions. As an official of the union that represented AP employees I played a small part in bringing about the extension of  benefits to domestic partners; of course I had an opinion. That didn’t preclude conveying the other side’s views. If we make having opinions a bar to fairness, we can kiss our legal system goodbye.

The issue is back in the news again, with the California Supreme Court upholding Proposition 8, which rolled back an earlier court decision allowing gay marriage – but sanctioning the 18,000 or so same sex marriages that occurred in the interim.

I don’t get it, I never have: Why do conservatives oppose monogamy? Comparisons to incest and to bigamy have always been specious; with very few exceptions, those relationships involve abuse that defies the very essence of "partnership" that one codifies in any marriage, gay or straight. "Community standards" is double talk for absolute deference to the majority, which doesn’t exactly portend a healthy democracy. One of the weirdest arguments comes from the African American pastors who claim to be worried about the standard that would be set for errant black fathers — by committing to a monogamous relationship? I don’t get it.

The only coherent position I’ve seen so far had been articulated by the Orthodox Union, quoted here by Eric in his roundup:

We fear that same-sex marriage poses a grave threat to the fundamental civil right of religious freedom. Scholars and advocates on both sides of this emotionally charged debate agree that codifying same-sex marriage without providing robust religious accommodations and exemptions will create widespread and unnecessary legal conflict that will "reverberate across the legal and religious landscape." 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.

This at least makes sense; poorly written laws allowing gay marriage might repercuss on those religious institutions that reject it (and have every right to). I’m not sure it justifies not allowing the laws to go forward, in terms of weighing one fairness against another. Desegregating schools, for instance, necessarily involved inconveniencing white pupils and families. But at least it articulates a real-world fear as opposed to the bizarre "farmers will marry their goats!/young males of color will abandon their children!" shreying we otherwise get.

Agudath Israel, unfortunately, errs on the side of shreying with its encomium about the "traditional meaning of marriage," which is a convenient way of prejudicing any discussion of what marriage means. Any argument that contains the word "traditional" without explaining and justifying the tradition amounts to ad hominem reasoning: "It is because we say it is." This is especially unfortunate from Aguda, which has in the past offered articulate, reasoned pleas for tolerance when considering other moral views at odds with Jewish teaching — oppositiion to embryonic stem cell research for instance — but fails to extend the same courtesy to gays who want to sanctify monogamous relationships.

That isn’t the worst of it though — I wouldn’t have been moved to write this if the Aguda statement had stopped there. But it gets vindictive:

There is one troubling aspect of today’s decision, the failure of the court to apply the people’s will retroactively to nontraditional ‘marriages’ entered into before the effective date of the state constitutional amendment.  The result will be inherently incoherent, to say nothing of offensive to tradition-minded Californians.

Incoherent? Maybe. You see the equal protection lawsuits marching up the highway, for sure.

But "offensive to tradition-minded Californians?"

What 36,000 people call each other in the privacy of their homes is offensive? What kind of polity, what kind of standard for privacy is Aguda proposing here?

How far does this go? Do we forcibly break up relationships we refuse to abide?

Say "community standards" forced a New Age religion to take its outdoor dancing and chanting indoors. Do we now enter their homes and physically keep them from dancing and chanting because the idea of  it — the knowledge that it is continuing inside their homes — somehow "offends" the community?

Also, smashing these marriages retroactively — however complicated their existence now is — strikes me as stunningly cruel. These couples — some in long term relationships — have finally achieved a degree of sanctification. Say the idea of that sanctification somehow uspets the community balance (again, I don’t see how, but okay, for argument’s sake). It has stopped. It won’t happen again. Are you going to force these folks into a legal nightmare now that the wills have been drawn, the custodies have been formalized?

Interestingly, there’s an example of merciful dealing with such a quandary: Jews, of course, have been monogamous since Rav Gershom’s interdiction. Except in Yemen. When Yemeni Jews made aliya en masse in the late 1940s and 1950s, the Israeli rabbinate sanctioned the polygamous relationships that existed prior to aliya — but made it clear that in Israel, one man takes one wife.

Families were not forced apart. Life went on.

That’s the kind of rachmanut I like to think is "traditional" to Judaism.

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