Edie Windsor, who brought the lawsuit that this week felled the Defense of Marriage Act, is Jewish. So was her wife, Thea Spyer, who died in 2009.
The federal government’s insistence on ignoring the spousal exemption and taxing Windsor for Spyer’s estate — despite the fact that New York State recognized their Ontario marriage as valid — is what led to this week’s decision.
Windsor’s lawyer, Roberta Kaplan, is also Jewish and also a member of CBST. When she learned of her client’s victory, Kaplan called her mother, according to the New Yorker. “Total victory, Mom: it couldn’t be better,” she said.
She argues that Judaism, contra its most rigid adherents, is susceptible to change. Her evidence is this week’s parsha, Pinchas, and its narrative of the five daughters of Zelophehad and how they stood up for their inheritance rights — and how God heeded them.
Kaplan suggests she brought the lesson of Zelophehad’s daughter with her into the courtroom, when she pushed back against Roberts’ intimation that politics drove the change she sought. She countered:
Shabbat shalom. If it is OK with you, I would like to spend some time this evening talking about the fundamental change that I believe led to the Supreme Court’s historic ruling in Edie Windsor vs. the United States of America — change at the level of the individual, change within our nation, and change in both secular and Jewish law.
Perhaps the dominant view in our popular 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 Christian evangelicals – 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 as well. Not only do certain groups of ultra Orthodox Jews hold a similar theory about Jewish law, or halachah, 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 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 lesbian, am standing on this bimah talking to you tonight would be utterly inconceivable to them.
But what I hope to be able to demonstrate to you tonight is that that is not the only way to be religious or to believe in God. 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 require it. Indeed, both the torah and the rabbis teach that such change is actually a positive value.
Let me start at the level of the individual. That is perhaps the easiest argument to make in the context of Judaism. After all, a mere few weeks from now (on August 7), we will begin the month of Elul, the month leading up to the High Holy days, when positive change and growth, is not only encouraged, but is a positive commandment. During the month of Elul, we blow the shofar each morning. Maimonedes described this custom of blowing the shofar every morning as a wake-up call to sleepers, designed to rouse us from our complacency to grow and to change. It’s a kind of spiritual alarm clock.
And in the context of a certain Jewish lady by the name of Edie Windsor – there is no doubt that the change that she has experienced thus far in her 84 years, from getting married to and then quickly divorced from a male family friend in the early 1950’s, to meeting Thea Spyer in 1963 and falling in love with her, to becoming engaged in 1967, to dealing, as a couple, with Thea’s multiple sclerosis, to ultimately getting married and coming out to everyone in her life in 2007, was and continues to be what has brought her and us to this day. Indeed, without such change, Edie never could have become (and I’m using her words) “the out lesbian who just happens to be suing the United States of America.”
In terms of change at the level of the community, that is also pretty obvious. Every Shabbat, after we read the torah portion, we read the haftorah, which includes the poetry of the prophets encouraging, even demanding, change on the part of the nation of Israel. That, after all, is what the Hebrew prophets like Amos or Isaiah were all about. Rabbi Abraham Joshua Heschel has written that “The prophet was an individual who said No to his society, condemning its habits and assumptions, its complacency . . .” It is surely no coincidence that Rabbi Heschel’s book on the prophets inspired Martin Luther King and that they worked closely together during the civil rights movement.
In terms of the LGBT community within Judaism, there can be little question that we have seen such change firsthand in the past year. Among other things, the Jewish Theological Seminary, for the first time in its entire history, submitted an amicus brief in a court case. Which case, one might ask? Edie Windsor vs. the United States, when JTS, along with the entire Conservative movement, joined an amicus brief urging the Supreme Court to strike down DOMA as unconstitutional. Think about this for a moment if you will – less than 10 years ago, any gay rabbi ordained at the Jewish Theological had to be in the closet. Today, JTS signed on to a brief at the United States Supreme Court arguing that the marriages of gay people should be respected under the law.
And I certainly don’t have to tell you that we have seen the same kind of dramatic change in our nation as well. According to a Gallup poll last month, 53% of Americans say that same-sex marriages should be recognized. A more recent ABC poll had the number at 58%. The current level of support is essentially double the 27% in Gallup’s initial measurement on gay marriage in 1996, when DOMA was passed. And we are now on the verge of electing an open lesbian to become mayor of the city of New York.
The change that has taken place in the context of Edie Windsor’s court case is illustrative of this phenomenon. When we filed our case in 2009, New York State did not permit gay couples to marry. That is why Edie and Thea had to go to Toronto to get married. In 2011, New York passed its own marriage statute, making it only the sixth state in the country to grant gay people the freedom to marry. This past March, when I argued the case before the Supreme Court, 9 states plus the District of Columbia permitted gay couples to marry. Today, only three months later, 12 states do. And those numbers will only continue to grow.
But where the proverbial rubber hits the road is change in the law. The question of whether and to what extent Jewish law can change is the central debate that divides religious Jews today and in the past. And that brings me to this week’s Torah portion, Parshat Pinchas (Numbers, Chapter 27), which contains the story of the daughters of Zelophehad and thus I believe 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.”
This legal rule preferring men over women with respect to inheritance was later changed as well. The Book of Job, which dates from the fourth century, states that Job’s daughters were given equal inheritance rights to his sons. By the Middle Ages, the inequality between daughters and sons was avoided through a legal mechanism by which the father claimed that he was indebted to his daughter for a certain sum of money, and that this debt was due by him and his heirs. As a result, the daughter would either gain a share in her father’s estate, or a sum of money equal to its value. There are numerous other examples of the rabbis insisting on an ethical reading of a Biblical proscription when it comes to the actual execution of the law, particularly when dealing with the circumstances of people’s lives
I bet you know where I’m headed with this by now. The notion that Jewish law is fixed in stone, unbending and unyielding and not subject to change is simply 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. And it surely isn’t consistent with the actions of the rabbis centuries later, when, recognizing the inherent dignity of women as individuals, they gave them equal inheritance rights under Jewish law.
This same dynamic, but this time in the context of American constitutional law, was at play in my now famous exchange with Chief Justice John Roberts during the oral argument in the Windsor case on March 27. That exchange involved a debate about what really has been driving the dramatic transformation in American attitudes about gay people. The Chief Justice suggested that Americans were following the lead of elected officials. He asked me the following question: “I suppose the sea change has a lot to do with the political . . . effectiveness of people . . . supporting your side of the case?” I responded by explaining my view that the change was instead one of ethical perception, the result of an “understanding that there is no . . . fundamental difference that could justify . . . categorical discrimination between gay couples and straight couples.”
And then the Chief Justice pushed further, noting that “as far as I can tell, political figures are falling over themselves to endorse your side of the case.” My answer then and my answer today is the same — what truly has driven the change we have all experienced is not the so-called political power of gay people, but instead “a moral understanding today that gay people are no different, and that gay married couples’ relationships are not significantly different from the relationships of straight married people.” 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? I think the best way for me to sum up on this historic, Pride Shabbat in year 5773 is with Edie’s own words on the steps of the Supreme Court when she was asked to explain why such dramatic change has taken place: “I think what happened is at some point somebody came out and said ‘I’m gay.’ And this gave other people the guts to do it.” Edie observeded.” Amazingly, Rabbi Heschel said almost exactly the same thing years before, when he wrote that: “All it takes is one person… and another… and another… and another… to start a movement.” In the context of our community and our nation, from Selma to Stonewall, from Rosa Parks to Harvey Milk to Edie Windsor, both Rabbi Heschel and Edie Windsor could not have been more correct.