Editor’s note: The following is adapted from a speech the author gave to one of the largest Conservative shuls in the U.S., where a significant number of congregants voted for Donald Trump.
I would like to spend some time today talking about the landmark case of United States v. Windsor that I argued before the Supreme Court, which led to a dramatic change in moral understanding about the equality of gay men and lesbians under the law.
Perhaps the dominant view in our culture today is that religion, or belief in God, is inimical to the concept of change. That, after all, is the sense one gets when the media talks about evangelical Christians—that they preach a vision of life and law that cannot tolerate any deviation from the explicit Biblical text. The same, of course, is true within Judaism. Not only do certain groups of ultra Orthodox Jews hold a similar theory about Jewish law, or halakhah, but some even refuse to tolerate change in even the most mundane circumstances—for example, by refusing to use the Internet or by insisting on wearing a particular type of fur hat in today’s Jerusalem that their ancestors wore in 17th century Ukraine. The very idea that I, as a woman, not to mention a married lesbian mom, am here talking to you right now would be utterly inconceivable to them.
But what I hope to be able to demonstrate to you is that this kind of stubborn refusal to accept, welcome or adapt to change is not the only way to be religious. And it certainly is not the only or even the proper, interpretation of our tradition. Inherent in Jewish belief is the view that people, communities and even the law must and should change when times and ethical circumstances demand it. Indeed, both the Torah and the rabbis teach that such change is a positive good.
In the context of the Windsor case itself, it was the change that my client, Edie Windsor, experienced in her own lifetime from meeting Thea Spyer in 1963 and falling in love with her—to living so many years in the closet, to becoming engaged to Thea in 1967, to dealing with Thea’s multiple sclerosis, to ultimately getting married and coming out to everyone they knew in 2007—that led to our victory. We always believed that we would win our case if we could convince the judges that the marriage that Edie had with Thea, despite all the bigotry and homophobia, was really no different than their own. We succeeded. As Justice Kennedy wrote, the law that we struck down known as the Defense of Marriage Act, or DOMA, instructed “all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The court concluded that DOMA was 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.”
Last year, according to a NBC/WSJ poll, 58 percent of Americans said they supported the legalization of same-sex marriage nationwide. That is more than double the 27 percent in Gallup’s initial measurement on gay marriage in 1996, when DOMA was first enacted. Even president-elect Trump, in a recent interview with Leslie Stahl on 60 Minutes, said that as far as he was concerned, the question of marriage equality was “settled.”
But where the rubber hits the road is the question of whether and to what extent law can change. That is the central debate that divides religious people today and in the past. Because I am someone who often finds an uncanny, even mystical connection between what is in the weekly Torah portion and whatever happens to be going on in my life or the world at the time, I thought I would look to the Torah for guidance.
The Torah portion immediately after we won Windsor was Parshat Pinchas (Numbers: Chapter 27), which tells the story of the daughters of Zelophehad, and explicitly makes the case that Jewish law is subject to change in accordance with the dictates of fairness, justice and ethical compassion. Let me explain.
The Daughters of Zelophehad were five sisters whose father died during the 40 years in the wilderness after the escape from Egypt. According to God’s prior decree, the land of Israel was to be apportioned according to the number of names counted in the census. Since only men were counted in that census, Zelophehad’s daughters literally didn’t count and could not receive any inheritance from their father. As a result, Zelophehad’s daughters “came forward” to petition Moses and the priests for their right to inherit their father’s property. As they explained, “Why should our father’s name be eliminated from his family because he has no son?” Moses then took their case to God who told Moses that the plea of Zelophehad’s daughters was just and that they should receive their inheritance. God also told Moses to change the rule going forward so that “if a man dies and has no son, you shall transfer his inheritance to his daughter.”
The notion that Jewish law is fixed in stone, or that it is unbending and unyielding, is not consistent with the story of Zelophehad’s daughters. It is not consistent with the text of the Torah portion, with God’s actions, or with Moses’ words. After all, it is God himself who changed God’s own prior rule when God saw the justice in the daughters’ argument. That is the kind of change, the kind of tikkun olam, or repair of the world, that lies at the heart of our tradition. It is, I believe, what God commands of every individual, every community, even of the law, even of God.
So where does this all leave us today? Perhaps fittingly given the current climate, last week’s Torah portion Vayera is a veritable treasure trove of human pain and suffering. Early in the portion, we read about Hagar, Abraham’s mistress and Sarah’s handmaiden, who is banished with her and Abraham’s son Ishmael. In the wilderness, she is so overcome with thirst and fear that she cannot bear to look at her own son. Later, we read the well-known story of the Akedah or “binding of Isaac,” a story that terrified the young Abraham Joshua Heschel when he read it as a boy. The great Israeli Torah commentator Aviva Zornberg has interpreted Isaac’s blindness in old age as a delayed reaction to the Akedah. She analogizes Isaac’s blindness to a kind of post-traumatic stress disorder in people who have witnessed horrors which make “it necessary to suppress vision, to repress emotional response.” But that is not all. Last week’s Torah portion begins with the story of Sodom and Gomorrah. After God tells Abraham that God has decided to destroy Sodom and Gomorrah, Abraham attempts to convince God to spare the cities and fails. Only Lot and his family survive the destruction, but Lot’s wife disobeys by looking back at the horror and is turned into a pillar of salt.
All I can say in response is: oy. The early history of humanity as told in the Torah is a series of tragedies and disappointments. But, as JTS professor Matthew Goldstone wrote in his recent commentary on Vayera: “While hatred, violence, and death are no strangers for many of us, the stories in Vayera also tell of how these figures endured. Lot and his daughters continue on after the destruction of their home, Hagar and Ishmael survive in the wilderness, and both Abraham and Isaac return home together.” What last week’s difficult and painful Torah portion challenges us to remember is that change for the good, however slow, uneven or fitful, is always still possible.
So what do we do now in these dark and scary times? I, for one, refuse to give in to inertia or despair. Martin Luther King famously once said that “the arc or the moral universe is long, but bends toward justice.” Significantly, Dr. King did not use the metaphor of a straight line. Like an arc, as in the Torah, the concept of tikkun olam ebbs and flows. The great Hasidic rabbi Nachman of Bratslav, who also lived in scary times and who suffered from depression his whole life, said that “all the world is a very narrow bridge, and the most important thing is not to be overwhelmed by fear.” The great Russian poet Anna Akhmatova, who saw more than her share of human tragedy, wrote a poem entitled Lot’s Wife which ends as follows: “Who will grieve for this woman? Does she not seem too insignificant for our concern? Yet in my heart I never will deny her, who suffered death because she chose to turn.”
Roberta Kaplan is an American lawyer.