The Supreme Court’s embrace of equal treatment for same-sex marriage is not simply the result of a new attitude, but is also the latest stage in the development of a new legal doctrine — one that mirrors a similar development in Jewish thought.
The remarkable nature of Justice Anthony Kennedy’s majority decision in the case that struck down many restrictions in the Defense of Marriage Act (DOMA) is largely in how he flirts with, but ultimately glides past, several major and much-acknowledged legal doctrines, such as the Equal Protection Clause. It is by omission that that Kennedy suggests that no one of them quite fully applies to the case, United States v. Windsor. Instead, Kennedy combines the almost-there idea of several legal doctrines into an idea of treating others with a new legal term, “dignity.” Kennedy’s dignity doctrine has been developed over decades, especially through his landmark decisions on LGBT rights.
Jewish scholars will recognize a thread here in the emerging emphasis on what Talmudic rabbis termed, “kevod habriyot,” literally the respect or dignity afforded to God’s creatures. This is a doctrine that has been emphasized repeatedly in recent years that, as with Kennedy’s notion, speaks of an approach that defaults to non-judgment of others when foundational texts are silent on the law.
The word “dignity” and its counterpart “indignity” are mentioned 13 times in Kennedy’s majority opinion in the DOMA case, United States v. Windsor. For a legal concept that you won’t find in many law books, that’s quite a lot, when considering that Kennedy brings up a key concept of the Constitution’s 14th Amendment, “equal protection,” precisely the same number of times eight. Another key legal doctrine in the decision, the 5th Amendment’s clause regarding “due process,” gets only four mentions.
As you might have read, U.S. v. Windsor is about the marriage of two women, Thea Spyer and Edith Windsor, who wed in Ontario, Canada, in 2007, but lived in New York State, which, prior to the passage of same-sex-marriage legalization last year, still recognized as legal those same-sex marriages that occurred in other jurisdictions. When Spyer died, the widow Edith Windsor was forced to pay an inheritance tax on Spyer’s estate, because the federal government, under DOMA, could not extend Windsor the spousal benefit available to heterosexual married couples of not paying an inheritance tax on a spouse’s estate.
Kennedy pounds the table on behalf of Windsor’s dignity in his majority opinion. It’s not just a financial loss Kennedy is concerned with, it’s both the “injury and indignity” that has been subjected upon Windsor. “New York sought to give further protection and dignity to that bond,” of Windor’s and Speyer’s marriage, Kennedy writes, adding, “The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute.”
And Kennedy winds long-standing legal notions into his doctrine of dignity when he declares, “Responsibilities, as well as rights, enhance the dignity and integrity of the person.”
In his concluding paragraph, Kennedy announces, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
Unlike the United States, which has no statement on homosexuality in its founding documents, Judaism’s most basic text of the Bible does contain a clear denunciation of certain homosexual activity: “If a man lay with mankind in the way of laying with womankind, they have both committed an abomination; they shall surely be put to death; their blood shall be upon them,” declares the oft-cited passage of Leviticus 20:13. Similar sentiments are express in Leviticus 18:22. The Talmud incorporates some notions of female homosexuality and certain other sexual acts and relationships into its lists of condemnations through reference to more vague Biblical passages.
But what’s often surprising about the Jewish textual tradition is how little is made of these passages. The rabbis were mostly silent on the topic of homosexuality. To be sure, most of the major rabbis in history had at least something to say about it, and what they said was unambiguously condemnatory, but it was also highly sporadic, and highly specific: specific acts and specific couplings trigger the rabbis’ ire, without blanket condemnations of homosexual love or activity as we see, for example, in the House of Representatives’ report accompanying DOMA in 1996, which explained, “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”
Much like Kennedy looking at our nation’s founding documents and finding silence on the topic of homosexuality, many contemporary rabbis look into the abundance of silence in the Jewish textual tradition on the topic and see an opening to recognize the dignity of human beings.
Kevod habriyot is first mentioned in the Mishnaic tractate Avot, often referred to as “Ethics of the Fathers.” There, Ben Zoma asks, “Who is honored (mechubad)? The one who honors (mechabed) others (habriyot).” The passage cites a verse in the Book of Samuel I in which God announces, “Those that honor me, I will honor.”
The rabbis of the Talmud saw kevod habriyot as a way to pull back on the stringencies they created, to allow for people’s dignity. Where rabbinic laws regarding the Sabbath forbid carrying even a small amount, Tractate Shabbat reveals an exception to the rule is made for people to carry materials needed to wipe oneself after defecating, suggesting that the value of the rabbis’ Sabbath laws is undermined if people cannot maintain a sense of personal dignity while observing the law. Another example in Tractate Shabbat allows the building of a lavatory, again citing kevod habriyot as the rationale.
Another example in Tractate Shabbat allows the building of a lavatory, again citing kevod habriyot as the rationale. While these examples of potty pilpul might seem trivial in light of major matters like marriage and family, it’s both worth considering the severe punishment of 39 lashes that could have been meted out on someone carrying or building for reasons that weren’t permitted by the kevod habriyot concept, and worth reflecting on the seriousness with which the rabbis considered kevod habriyot such that simple hygiene considerations were worth altering these strict laws of the Sabbath.
Modern-day Orthodox rabbis have cited kevod habriyot in regard to medical ethics and euthanasia, special exemptions for the disabled and, more recently, in regard to women’s inclusion in practice and LGBT inclusion.
A 2010 “Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community,” organized by Yeshivat Chovevei Torah’s Rabbi Nati Helfgot and signed by nearly 200 Orthodox rabbis, emphasized this Jewish notion of dignity as a decisive factor for determining conduct in the spaces between explicit Jewish laws. Of the statement’s 12 principles, the very first begins, “All human beings are created in the image of God and deserve to be treated with dignity and respect (kevod habriyot),” adding “Embarrassing, harassing or demeaning someone with a homosexual orientation or same-sex attraction is a violation of Torah prohibitions that embody the deepest values of Judaism.” The statement actually goes on to articulate a Jewish legal standard that forbids all homosexual sex acts, while at the same time suggesting that the community should not judge or exclude those who are “openly practicing homosexuals” any more than it does other “open violators of halakha [Jewish law],” bringing to mind the common arguments about what other many violators of various Biblical and Talmudic mandates live in the Jewish community, and how they are often treated without any diminution in their dignity by their communities..
Like Kennedy’s earlier opinions on LGBT discrimination — Lawrence v. Texas, the 2003 decision striking down anti-sodomy laws, and Romer v. Evans, the 1996 decision that for the first time put the Supreme Court on the side of LGBT litigants in a case of discrimination — in light of rather recent development, the 2010 “Statement of Principles” seems dated. A great many who signed on to it had more LGBT-friendly thoughts at the time, or have them now. Much like the president, many rabbis are evolving, too.
If Judaism had a moment most like this week’s DOMA ruling, though, it was the 2006 decision by the Conservative Rabbinical Assembly’s Committee on Jewish Law and Standards decision to allow out gays and lesbians to attend openly the movement’s flagship rabbinical seminary, in addition to liberalizing other of the movement’s attitudes regarding homosexual activity. In arguing for peeling back various notions of rabbinic restrictions in this realm, they cited as a cornerstone principle the concept of kevod habriyot, with the key responsum approved by the committee declaring, “So great is human dignity that it supersedes a negative commandment of the Torah.”
And as with the DOMA decision, that much-celebrated Conservative responsum left open the possibility that more change was to come, if more people wanted change. The responsum declared that the committee was powerless to reverse Biblical rulings, and could only then set its sights on rabbinic law: “It is not possible to set aside the explicit biblical prohibition on anal sex that is stated twice in Leviticus and frequently reaffirmed by the Rabbis.” However, it also noted that while such a change would be theoretically possible within Conservative doctrine, doing so “requires the consent of the majority of the population, and this subject remains quite controversial in the observant Jewish community.”
This last note speaks to the interestingly intertwined nature of these notions of Kennedy’s “dignity” and Judaism’s kevod habriyot. After all, Justice Antonin Scalia persistently calls, such as in Lawrence, to maintain a sense of “moral opprobrium.” In that decision, he writes with a sense of bewilderment at the idea that attitudes such as those regarding homosexuality can change and that such change should be used by the courts to overturn Congress’s laws: “Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.”
Edith Windsor herself spoke to precisely what had changed, telling reporters last week, “As we increasingly came out, people saw that we didn’t have horns,” adding, “People learned that, OK, we were their kids and their cousins…It just grew to where we were human beings like everybody else.”
Forgetting that others are human beings is surprisingly and dangerously easy; and it’s amazing how much we learn when we stare into the face of the other and discover what it is to be human. That’s probably part of why, amid dense legal texts and detailed precedent, our rabbis and now our Supreme Court have made sure to instruct us that we must not forget that basic sense of dignity, of kevod habriyot.
Steven I. Weiss is an award-winning journalist, and is news anchor, managing editor, and executive producer of news and public-affairs programming at The Jewish Channel.