Mail.Liberal-Judaism

• LeeSol@aol.com (Lisa Solomon)
• sandgryan@att.net (Scott Ryan)

• Allan Tulchin <tulc@midway.uchicago.edu>
• LeeSol@aol.com (Lisa Solomon)
• Julian Yudelson <jeybbu@ritvax.isc.rit.edu>
• sandgryan@att.net

From: LeeSol@aol.com (Lisa Solomon)
Date: Mon Apr 24 11:22:17 US/Pacific 2000
Subject: Re: Ethics and the State

Rabbi Waskow writes:

> Thus -- let's say -- someone who claimed membership in Orthodox Judaism
> might be COMPELLED to have an abortion if the fetus threatened the life of
> the mother, while someone who claimed membership in Roman Catholicism might
> be FORBIDDEN to have an abortion under the same circumstances.

Isn't compelling anyone contrary to the precepts of liberal Judaism? I'd think
that compelling an act or behavior excludes the possibility of a person acting
out of choice. Also, if someone accepts to live by a subcommunity's moral
codes, why would we need to compel the enforcement of them?

> IF -- either of them could quit those communities simply by saying so in a
> formal and explicit way. 

In this case, compelling the moral code of the subcommunity on an individual 
cannot even be accomplished in principle, no less in practice. I'm afraid I 
don't see the value or purpose in establishing such a practice in the first 
place.

> It would certainly force people to take much more seriously their decisions
> about what communities they claimed membership in.

Are you referring to religious communities? How would joining or quitting a 
religious community with a formal and explicit declaration force people to 
take their affiliation decisions more seriously? Actually, in joining or 
quitting a religious community, isn't that what we now have in practice 
(aside from a legally compelled moral code)? Is what you mean different from 
joining and resigning from a shul in writing?

B'Shalom,

Lisa

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From: sandgryan@att.net (Scott Ryan)
Date: Mon Apr 24 11:27:06 US/Pacific 2000
Subject: Re: Ethics and the State

Rabbi Arthur Waskow makes several interesting points in his post "Re: Ethics
and the State" in v9n153. Space will permit me to reply on only a couple of
them in the present post.

> Scott Ryan tossed into our discussion -- in part as a joke, I think -- the
> label "libertarian" -- Someday, he said, I might become one.

For the record, I was not joking at all. Rabbi Waskow may recall from our
discussions on-list a year or two ago that I am indeed a "libertarian" (or
"classical liberal"), and I don't think it's at all beyond the realm of
possibility that Rabbi Waskow himself might "become one."

For example, the following is a pretty good summary of my own position, though
I gather it is not quite Rabbi Waskow's:

> I could imagine going a great deal further than we do to define
> subcommunities that could enforce their morals, SO LONG AS WE A[L]SO MADE
> ABSOLUTELY CLEAR A WAY TO SECEDE FROM THOSE SUBCOMMUNITIES.

I could pick nits about this or that point, but I think Rabbi Waskow has at
last correctly grasped the essential intent of my own position. And so I am a
bit nonplussed by Rabbi Waskow's remarks here:

> In this specific question -- the nature of marriage -- I do not believe any
> society can leave purely to private decision the myriad intimate living
> relationships of its members, and therefore needs to have laws governing
> families and their property, child custody, etc etc.

As I have tried to state explicitly whenever possible, in my own posts I have
been using the term "private" to mean "non-State." There is no question
whatsoever that a society needs laws governing families and the related areas
to which Rabbi Waskow refers, and that such matters are of "public" import in
Rabbi Waskow's sense.

However, I maintain that these "public" matters can and should be governed by
law which is "private" in the sense of "non-State" -- Halakha itself being
both a prime example of such law and a demonstration of its "staying power."
With this adjustment in terminology, I concur with Rabbi Waskow's point and in
fact have been making it myself for several issues now.

I do not think, though, Rabbi Waskow is being very careful or precise in the
rest of his reply:

> That same libertarianism that encourages religious communities to make their
> own decisions about marriage itself OUGHT not then to cite as a support for
> legal strictures a vague "moral sense of the community," which operates
> functionally exactly as the dominant religious culture does at the moment.

Here I am mystified as to what Rabbi Waskow might be quoting from. I do not
recall that anyone in this discussion has used the phrase Rabbi Waskow has
placed in quotation marks. Nor, as we have already seen and shall shortly see
again, is it my own side which is calling for "legal strictures."

> Someone who wanted to shape policy this way would NOT be what I would call a
> libertarian.  Rabbi Daniel Lappin [sic], for example, supports and works
> closely with those strands of the Christian community that would like to
> impose, by law, a very particular minority Christian stance about abortion
> on the nation.  But as I've already said, the "libertarian" label is very
> porous.

First of all, I have no reason to think Rabbi Lapin calls himself a
"libertarian," so I do not see the relevance of Rabbi Waskow's remark about
the "porosity" of the libertarian label. (By the way, anyone who is not
familiar with Rabbi Lapin and wonders what the fuss is about should visit the
website of his organization, "Toward Tradition," at
http://www.towardtradition.org.)

Second, I am far from clear why Rabbi Waskow indirectly characterizes Rabbi
Lapin's own views on abortion as a "very particular minority Christian
stance." Rabbi Lapin's views on abortion are a very particular majority
Orthodox-Jewish "stance," and on this point it is "libertarianism" rather than
Halakha which is inconsistent. (Some libertarians know it, too. See, for
example, the Libertarians For Life website at http://www.l4l.org.)

And therefore, third, I see no difficulty in being both "libertarian" and
opposed to State-legalized abortion-on-demand. The label "libertarian" is not
quite as elastic as Rabbi Waskow thinks; indeed I would say that in the final
analysis it should be denied to those who think unborn human beings do _not_
merit the protection of "rights."

Since Rabbi Waskow has raised the subject, I shall also mention that Roe
v. Wade (in which the right to abortion-on-demand was basically conjured out
of thin air by a handful of justices) is a prime example of the sort of
"judge-made law" Rabbi Waskow seems to support. In my own view, even
_defenders_ of this so-called right should be wary of the process by which it
was created, and in fact some of them are. (That is, there are supporters of
abortion-on-demand who nevertheless agree that Roe v.  Wade wasn't the right
way to go about providing it.)

I mention this point because Rabbi Waskow specifically refers to "the support
of the judiciary" before remarking rather cryptically on "what has happened in
Vermont." I have no way to tell from Rabbi Waskow's comments exactly what he
believes has "happened" in Vermont or what he thinks of it, but his remarks
seem to indicate that he favors the creation of law by the "judiciary" rather
than by elected legislatures.

Now, this point takes us perhaps slightly outside the scope of this list, but
as Rabbi Waskow has opened the door, I hope I shall be permitted a brief reply
before dropping the matter entirely. What Rabbi Waskow seems to be calling for
here is just exactly the sort of "legislation" the various pending state
"marriage-definition" laws are intended to counter.

Broadly and generally: the forces that wish to make everyone recognize
same-sex marriages are well aware that they do not command a majority and will
not succeed if they concentrate their efforts on (elected) legislatures.  They
have therefore been pressing on several fronts to get various _courts_ to
recognize such marriages, thereby taking advantage of a disturbing trend in
modern U.S. law and doing an end-run around what should be the legislative
process.

The opponents of these efforts have therefore, in some states, pressed for
legislation to forestall such a move, not -- as some would have you believe --
by outlawing same-sex unions, but by preventing their _legal recognition as
"marriages"_ under the laws of the relevant states.

I do not say that these efforts are necessarily well-advised, and I would
personally criticize some of them on grounds I shall not discuss here. But
that Rabbi Waskow favors the creation of law by judges--if he does favor
it--simply confirms what I have been saying all along about who wants to use
the power of the State and for what purposes. I have already argued that this
approach is incompatible with Jewish tradition and I shall say no more about
it.

Scott Ryan
SandGRyan@worldnet.att.net

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From: Allan Tulchin <tulc@midway.uchicago.edu>
Date: Mon Apr 24 14:36:04 US/Pacific 2000
Subject: Gay Marriage

I wanted to reply to Art Kamlet's excellent post [Volume 9 Number 153].  His
argument, in a nutshell, is that there is no religious discrimination in
forbidding gay marriages because the state obviously has to describe what a
marriage is, and decide under what circumstances a valid marriage can take
place.  The state decides on the age of consent, how long one must be a
resident of the state before a marriage may take place, whether cousins may
marry, and so forth.  Furthermore, it sets up those rules not just for clergy,
but for justices of the peace and other civil officials.

This is true so far as it goes, but it fails to ask what was legislature's
*motivation* when writing the rules. The state has a legitimate role to
play in protecting children, for example, so it can set the age of consent.
The test should be, is the regulation rationally related to a legitimate
state purpose?  Specifically, are there good reasons to prevent gay couples
from marrying? If the only reason for the rule is to impose the moral
values derived from a particular religious tradition, then it seems to me
that there is an argument, in logic if not in law, for Arthur Waskow's
belief that a form of religious discrimination is at work.

There's one other legal notion that it would be worthwhile to consider,
namely the notion of "strict scrutiny." The US Supreme Court invokes that
term when it considers regulations concerning the treatment of specified
groups who are known to have been discriminated against in the past.
Because of America's history of racism, the Court has decided that *any*
regulation affecting blacks differentially has to be looked at very
carefully, for example.  Similarly, given the history of anti-gay prejudice
in America, you have to wonder whether the rules on who may be legitimately
married are truly a product of reason, and not discrimination.

For all of these reasons, I think the CCAR's resolution of a couple of
years ago, advocating gay *civil* marriage, was entirely right and
reasonable, although I continue to have concerns about the most recent
resolution. Although I see the ethical logic of it, I feel it must be
balanced by a respect for tradition, and for Jewish unity.

Allan Tulchin
tulc@midway.uchicago.edu

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From: LeeSol@aol.com (Lisa Solomon)
Date: Mon Apr 24 11:23:02 US/Pacific 2000
Subject: Gay Marriage

Allan Tulchin writes:

> Scott continues to assert that proponents of gay marriage are out to force
> Southern Baptists and other opponents of it to accept such marriages
> religiously.  *Persuade* I might accept, but force is absurd.  They just
> want the same legal rights in civil law as other couples who have gone
> through the appropriate legal forms. 

If this was Scott's assertion, I must ask if proponents of gay marriage are 
attempting to have others accept such marriages *religiously*, or to 
recognize the couple's non-religious *rights* that are conferred upon them by 
virtue of being legally married? My perception, like Allan's, is that they 
want the same non-religious rights to apply to homosexual couples as those 
enjoyed by heterosexual couples. Wouldn't insisting that others religiously 
accept homosexual marriages be denying them the choice of determining their 
own beliefs?

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From: Julian Yudelson <jeybbu@ritvax.isc.rit.edu>
Date: Tue Apr 25  8:22:14 US/Pacific 2000
Subject: Re: Gay Marriage

Note that, at the present time, the legal system of the US DOES NOT confer any
benefits upon marriages contracted according to the principles of ANY religion
that are contrary to the laws of that state and or the United States.  No
Mormon can claim multiples wives according to the "principles of his faith"
nor can a Sphardi Jew, a Muslim, or an African chieftain.  The civil code does
deputize most, but not all, religious functionaries as authorized under the
laws of a particular state to perform weddings.

A Jewish marriage does not require any rabbinical or state representation to
be valid and binding by Jewish halakah, but it is not recognized by the state
as valid without the Jewishly unnecessary marriage license, and wording.

The States, and the Federal Government have always had the ability to
deligitimitize certain religious practices that were contrary to the law of
the land.  Children have been forced to undergo medical treatment against the
religious wishes of their parents.  Religious beliefs cannot support the
marriage of a person to an animal, or even a minor.  The state does not confer
any special status to shacking up heterosexuals, even if they were blessed or
sanctified by a friendly yoga master.

According to the US tax code, a rabbi such as Arthur Waskow, as a
representative of an "established religion" is entitled to a tax break in the
form of a parsonage that would be disallowed to me if I were set my self up as
a Rabbi in the faith of ME.

J. Yudelson

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From: sandgryan@att.net
Date: Wed Apr 26  7:44:01 US/Pacific 2000
Subject: Re: Gay Marriage

A short response to a question from Allan Tulchin. (I had originally planned
to hold this until the next issue, but -- unsurprisingly -- list activity is
slow this week.)  Allan asks:

> Once we accept, as we must, that US law is going to continue to accept
> marriage (and for that matter divorce) as civil matters with legal
> consequences, should that civil state be attainable by gay couples?

Well, I disagree that we must simply "accept" the U.S.  government's pesky
habit of exceeding its Constitutional bounds, but Allan is asking a very good
question here. I think I've at least implied my answer in my previous posts,
but in case I haven't been sufficiently clear, in my view the answer is "No."

Allan is right: we need to distinguish carefully between (a) what would happen
in a libertarian's (or for that matter anyone else's) "ideal world" and (b)
what should happen _given_ the fact that U.S. law will in all likelihood
continue to regulate certain matters that libertarians think it shouldn't. And
to answer his question: I think that, given this latter fact, such law should
at least try, insofar as it is possible, to "mimic" what would happen in that
ideal world in which individual rights were fully protected -- and, yes, of
course to maintain rather than undermine (since by hypothesis it cannot help
doing one or the other) what I do, after all, believe to be divinely revealed
moral standards.

In any case I think we should oppose _expansions_ of government power beyond
the scope of the Constitution (while also working, where possible, to scale
back the illicit powers the State has already assumed; no practical
opportunity to "deregulate" -- i.e. to restore legitimate power to the proper
_private_ authorities -- should be missed).

The general principle here is that ideals can and do help to govern a world in
which they are not fully realized; the fact that the U.S. is not likely to
become fully libertarian in my own lifetime does not mean the libertarian
ideal is simply irrelevant to present policy.  This principle has much wider
application than I can discuss in a single post, but its application to the
present issue is that I do not believe U.S. law should be in the business of
recognizing "new" forms of marriage (especially nonbiblical/non-Noahide ones)
_even_ when it is already up to its ears in recognitions of the "old" one. I
also think that, morally speaking, government regulation should at least be
"conservative" _if_ it is going to regulate what it ought not. That way the
damage is at least minimized. I hope that is a sufficiently straightforward
answer to Allan's question.

Now, my conclusion here is not as firm as in the corresponding case involving
Halakha; I think it is simply unarguable that Halakha cannot recognize
same-sex unions, whereas it is at least possible (though frankly unlikely)
that I could change my mind about civil unions.  That is to be expected in the
nature of the case. From my point of view, the question arises in the first
place only because the secular government is exceeding its proper bounds --
and under the hypothesis that it shall continue doing so, _no_ ideal solution
exists. I therefore _might_ be willing to consider ranking the non-ideal
solutions in a different order. But the arguments would have to be _very_ good
ones.

At any rate, I reiterate that I don't ultimately favor having the secular
State involved in such regulation at all; I think the territorial magistrate
should be strictly limited to the "night watchman" role it is assigned in
classical liberalism (which, not coincidentally, is at least similar to its
role in traditional Jewish thought). If gay and lesbian couples wish to
announce to the world that they are married, I do not think secular law should
forbid them to do so. But they are not married according to any standard I
myself accept, and I shall continue to oppose legal activism which seeks to
confer on them the imaginary "civil right" to be treated otherwise.

Space will not permit me to respond to all of Allan's other remarks (and some
of my responses would take us outside the scope of the list anyway). I
apologize for leaving them unaddressed and I hope Allan will let me know if he
would like my reply on any points I have omitted.

Scott Ryan
SandGRyan@worldnet.att.net

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"It is not our task as liberal Jews to complain about the Orthodox attitude or to be bullied by it, but rather to choose our legitimate path according to the inner logic and development of liberal Judaism" (Rabbi Walter Jacob)

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