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On same-sex marriage, Orthodox Jews should keep the religious and civil separate—as they do on other issues

Hillel Y. Levin
May 22, 2012
A same-sex couple at San Francisco City Hall June 17, 2008.(Justin Sullivan/Getty Images)
A same-sex couple at San Francisco City Hall June 17, 2008.(Justin Sullivan/Getty Images)

Last week the two leading umbrella organizations of Orthodox Jewish synagogues issued statements opposing same-sex marriage and condemning President Barack Obama’s historic expression of support for it. As an Orthodox Jew, law professor, and a longtime advocate for same-sex marriage, I am left deeply distressed by this move. Although the Torah and Orthodox Jewish law and tradition clearly prohibit sexual activity between two members of the same sex, it is a mistake for these organizations to pick a fight on this matter. My synagogue, the Young Israel of Toco Hills, is a member of both groups, and I fervently hope they will rethink their positions. Put simply: Same-sex marriage should not be a religious issue for Orthodox Jews, because it does not threaten Orthodox Judaism.

To their credit, the National Council of Young Israel and the Orthodox Union avoided the predictable and specious arguments that same-sex marriage would harm children, threaten traditional marriage, or otherwise doom Western civilization. Instead, they grounded their opposition in Jewish religious law. In its statement, the NCYI said it opposes what it calls “same gender marriage”—I guess the word “sex” is too titillating—because it is “antithetical to the religious principles that we live by.” (Full disclosure: The NCYI is currently engaged in a long-running feud with several synagogues, including mine, about an unrelated matter, and I have been involved in efforts to reform the organization’s governance.) Similarly, the Orthodox Union, a relatively more centrist and open organization within the Orthodox Jewish spectrum, explained that even though it “condemns discrimination,” it opposes “any effort to change the definition of marriage to include same sex unions.”

This is misguided, on a number of levels. Firstly, Judaism already treats Jewish and civil marriages differently, and synagogues—like all religious organizations—are free to define marriage according to their own religious principles. For example, marriages between Jews and members of other faiths are not performed or recognized in Orthodox synagogues. Other denominations perform them as they see fit. The same approach can easily be applied to same-sex marriages. Orthodox synagogues will not be forced to redefine religious marriage on account of the legalization of same sex marriage.

More fundamentally, the word “marriage” has no special significance to Jews. The Jewish term for the sacred union between a man and a woman is kiddushin. Kiddushin and civil marriage give rise to wholly different rights and impose different responsibilities, and the processes for dissolving a Jewish union and a civil marriage also differ entirely. Likewise, although a kiddushin ceremony is sufficient to establish a civil marriage under U.S. law, the reverse is not the case: A civil marriage ceremony is not necessarily sufficient to constitute kiddushin.

My own wedding experience illustrates this idea. For reasons of convenience, my wife and I had a civil marriage a few weeks before we entered kiddushin. During the period between the two ceremonies, secular law recognized us as married and bestowed all of the rights and responsibilities of marriage on us. Our synagogue, however, recognized no relationship between us at all. And, as Orthodox Jews, we continued to live separately until our kiddushin ceremony. Had we changed our minds about our commitment to one another, we would have had to seek a secular divorce or annulment but would not have gone through the religious divorce process. Plainly, Orthodox Judaism is capable of distinguishing and accommodating the differences between marriages that have religious significance and those that do not. Same-sex marriage should be no different.

But the strongest reason that organized American Orthodox Jewry should not take a religious stand on same-sex marriage lies in our cultural identity and history. In contrast to religious Christians, our culture is not the dominant one in this country. The Christian day of rest is observed in this country, but ours is not; Christmas is a federal holiday, but Yom Kippur is not. You won’t find religious Jews Tebowing (unless they’re doing it ironically), and depictions of Orthodox Jews in popular movies are always played for the same kind of laughs as any other wacky racial and ethnic caricatures. What I am describing here is not a sense of unhealthy alienation from mainstream society, but rather the cultural distance that simply and naturally adheres to minority groups in America.

Unlike our Christian friends and neighbors, Jews grow up with our minority status deeply ingrained and without the instinctive expectation that our religious traditions and beliefs will naturally be reflected in the broader law and culture. As a minority within a minority, Orthodox Jews recognize that we reap the benefits of pluralism, tolerance, and accommodation. After all, if religious beliefs in this country were to orient secular law, we would find ourselves deeply disappointed and possibly threatened, just as we historically have in every other diaspora country.

For good reason, then, American Jews and Orthodox Jews in particular are usually reticent about imposing our religious values and views on others. For example, the NCYI and the OU have never taken a public political stance against laws that permit intermarriage, even though intermarriage represents a far greater practical threat to Jewish communities than does same-sex marriage. Likewise, Orthodox Jewish leaders would never (one hopes) support a constitutional amendment prohibiting idolatry—even though the Torah has far more nasty things to say about idolatry than it does about same-sex marriage. Orthodox Jewish institutions should approach same-sex marriage with at least the same cultural distance and dispassion.

To be sure, there may be some issues in the public sphere on which Orthodox Jews will find themselves compelled to take a political stand out of religious conviction. But these occasions should be the exception rather than the rule. And we should be especially hesitant to do so concerning the debate over same-sex marriage, in which the rights of another American minority are at stake. Instead, we ought to be grateful that we live in a society in which minority groups’ religious and civil rights are respected, and in which equality is imposed by law.

Same-sex marriage does not threaten any aspect of Orthodox Jewish religious beliefs or practices. Orthodox Jews should decide whether or not to support it on purely neutral, secular terms, and we should reconcile ourselves to our detachment from mainstream culture just as we always have.


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Hillel Y. Levin is an assistant professor at the University of Georgia School of Law. He lives with his family in Atlanta, Ga., and is on the board and executive committee of the Young Israel of Toco Hills.

Hillel Y. Levin is an assistant professor at the University of Georgia School of Law. He lives with his family in Atlanta, Ga., and is on the board and executive committee of the Young Israel of Toco Hills.