May 13, 2004
Is it a fight for equal rights or the end of a moral society?
Just married in San Francisco, Mindy Blum and Pam Postrel returned home to Pasadena to find that their kids had decorated the house in balloons and signs congratulating "Mom and Mommy."
For days after, Eve, 7, shouted in playground sing-song, "I have married parents! I have married parents!"
"Coming from her, especially, it really just hit us where we live," said Postrel, who has been with Blum for 16 years. The two are also mothers to Matt, 5.
It hit them, in fact, much more than they had anticipated.
"For some reason, the societal recognition is important to both of us. We kind of felt like it shouldn't be -- like who cares -- but it is a big deal," Postrel said.
Amid a flurry of legal activity and political posturing, the topic of gay marriage has moved with lightning speed from being an obscure issue reserved for advocates and their seasoned respondents to the forefront of political, emotional and intellectual debate.
Advocates and opponents of gay marriage are in agreement about what is at stake here: giving same-sex marriage equal status as heterosexual marriage. Where they differ is on the impact. Gays and their supporters say marriage is the only way to guarantee their constitutional right to equal protection under the law. Opponents say gay marriage will lead to nothing less than the unraveling of society.
At the heart of the debate is an intertwining of the social, religious and legal fibers that combine to form marriage and questions regarding to what extent those fibers can or should be untangled.
Opponents of same-sex marriage say that trying to separate the spiritual and legal definitions of marriage is a disingenuous exercise, since marriage is defined by a society that bases itself on moral, and very often religious-based, values and uses those values to decide who will reap the benefits of society.
"Our society is based upon Judeo-Christian values, and as much as people would like to think we are completely divorced from religion, that is simply not the case," said Rabbi Daniel Korobkin, rabbi of the Orthodox Kehillat Yavneh in Hancock Park. "Our society does make moral judgments, and ultimately, moral judgments are based on a moral compass. And where does that come from? For most people in the United States, that moral compass comes from the Bible."
Advocates say society would benefit from loving couples and their children being afforded the same legal protections and benefits as anyone else. They argue that choosing one religious definition of marriage over another to determine who receives governmental benefits is unconstitutional.
"We are dangerously overlapping church and state in the whole legal marriage discussion," said Rabbi Lisa Edwards, leader of Beth Chayim Chadashim (BCC) on Pico Boulevard, which was the world's first gay and lesbian synagogue. "I do think that God needs to be part of the conversation within the Jewish community and other religious communities, but I don't think God ought to be part of the larger legal, public discussion."
Bringing religion in obscures the basic civil rights issue that is at the heart of this, advocates say.
"This movement for gay marriages is plain and simple about helping families protect themselves, using the mechanisms our society has created to protect families and to protect partners in loving relationships, and to have them live up to the rights and responsibilities that go along with that," said Rabbi Denise Eger, rabbi of Kol Ami, West Hollywood's Reform Synagogue, and a member of the steering committee of the California Freedom to Marry Coalition.
But many fear the consequences of taking God out of foundational societal mores.
"A godless society is not a healthy society," Korobkin said. "It may be functional, but if there is no larger cause that unifies the people and calls them to a higher moral standard, then that society is doomed to a short-lived and amoral tenure."
One idea being floated is taking the state out of the marriage business altogether. The state would offer civil unions to everyone -- gay and straight couples -- and leave the sanctification to religious bodies.
"It makes sense to me to get city hall out of the marriage business and put that squarely in the hands of the religious leaders," said Rabbi Steve Greenberg, an Orthodox rabbi who came out of the closet a few years ago. "The advantage of this approach is that nobody uses civil marriage as a bully pulpit to force one religious view of marriage or another on the larger body politic."
But gay couples acknowledge -- and opponents are quick to agree -- that it is both an emotion and legal challenge to make that separation. The bestowal of the hundreds of legal rights and protections that go along with the word "marriage" signifies a societal acceptance that is an equally, if not more, important goal of the movement to legalize same-gender marriage.
"My parents have this piece of paper, and we wanted to have the same piece of paper and have the same experience," says Bracha Yael, holding up the framed marriage license she and her partner of 24 years, Davi Cheng, signed in San Francisco in February. "For me it confirms that our relationship is equal; that my parents' relationship is not somehow greater than ours."
It is only in the last seven or eight years that Cheng and Yael have lived openly and proudly as lesbians. In 1998, they had a Jewish wedding at BCC, with many friends and almost no family members.
"There has been this tremendous arc in our relationship, from being fully closeted, where no one had to tell us we were less than, because we already thought we were less than, through these trials and tribulations to the other side, where we're equal within society, but mainly within ourselves," said Yael, a contractor.
When they announced they had gotten married, even Cheng's "Rush Limbaugh Republican" colleague cried and hugged her.
It is just that kind of validation and acceptance of facts on the ground that opponents don't want to see, that they say can lead to the slippery slope of a society with no moral foothold.
"I don't want children to start thinking at the age of 7, when somebody says, 'Who are you going to marry?' 'Well, maybe it will be Johnny or maybe it will be Jennifer,'" said Dennis Prager, the conservative KRLA radio talk show host who debated same-sex marriage at the University of Judaism on May 12 with Greenberg and others.
He argues that the question of same-sex marriage has nothing to do with civil rights, since, just like anyone else, gays are permitted to marry members of the opposite sex.
Prager said that society does and should define the terms of who can marry -- such as prohibitions on brothers and sisters marrying each other or polygamy.
"Utah was banned from admission to the union until it prohibited polygamy. Why was that not anti-Mormon or violating the rights of Mormons?" Prager asks.
Prager said his issue is not with gays who want to be in relationships, it is with those who want to make those relationships equal to heterosexual marriage.
"Everybody has a line they draw, and the burden of argument is on those who wish to redefine an institution that has had only one meaning in the history of civilization," Prager said.
While opponents of same-sex marriage draw parallels to polygamy and incest, advocates compare it to the ban on interracial marriage, which California became the first state to lift in 1948.
Experts estimate that anywhere between 3 percent and 10 percent of all people are homosexual, and a growing number of gays are weaving themselves into society as proud couples and families.
"I understand it's this huge cultural shift for some people, but the fact of the matter is it has been going on for years in some form or fashion, whether it was called marriage or not," said Samuel Bernstein-Shore, who married Ronald, his partner of 10 years, in Vancouver last summer and at Temple Kol Ami in 1996. "By having this discussion, people are forced to acknowledge that we exist, and that we exist in a loving and committed way."
When the Bernstein-Shores married in Canada, they didn't realize that their marriage would not be portable -- that in most places in the United States, that marriage license would be meaningless.
It is one of the many legal confusions arising out of the incremental gains and setbacks to legalizing same-sex marriage.
Marriages performed in San Francisco in February remain valid while the California Supreme Court weighs the issue, taking into account both the 4,000 couples who are already married and the 2000 Defense of Marriage initiative, which defined marriage as between a man and woman. But like marriages and civil unions performed in Vermont, Canada or starting this week in Massachusetts, California gay marriages may not be recognized in other states. Before February there were four cases before courts nationwide. Today, there are at least two dozen.
Gay couples in California have been able to register as domestic partners since 1979, and the rights associated with domestic partnership -- rights to hospital visits, power of attorney, limited inheritance rights, benefits for partners of state employees, sick leave to care for partners -- have been increasing over the years.
In January 2005, a new law will take effect in California that gives domestic partners -- which is limited to same-sex couples or senior citizens -- nearly all the same state and county rights as married couples, though none of the federal rights. It will also remove other existing inequities, such as gay partners having to pay taxes on insurance benefits for a partner.
The constitutional amendment to define marriage as between a man and a woman, if enacted, would pull the plug on states that have already allowed marriages and not leave many options open to gay rights advocates.
Jewish law, meanwhile, divides along denominational lines. The Reconstructionist Rabbinical College was the first to ordain gay rabbis, starting in 1984, and endorsed officiating at gay marriages in 1993.
The Reform movement has been ordaining gay rabbis since 1990. Reform rabbis have been performing same sex-ceremonies since the 1970s, and in 2000, the movement passed a resolution endorsing rabbis who choose to officiate and supporting the personal autonomy of those who don't.
Both the Reform and Reconstructionist movements endorse civil gay marriages.
Simcha DuBowski's movie, "Trembling Before G-d," chronicling the struggle of gays within the Orthodox movement, along with Greenberg's coming out, opened up in some Orthodox circles conversations about how to act more sensitively, even when open homosexuality is not sanctioned by halacha.
It is in the Conservative movement that the conversation is most active and possibly divisive.
"I think many people who want to retain the traditional stance feel intimidated by an increasing number of people who demand politically correct statements and politically correct positions and are eager to demonize those who would uphold traditional standards, as opposed to going with the more liberal reforms, and that is hurtful to people," said Rabbi Perry Rank, president of the Conservative movement's Rabbinical Assembly.
The questions of same-sex commitment ceremonies and ordaining gay and lesbian rabbis are currently before the movement's influential Committee on Jewish Law and Standards. By next March, the committee will consider teshuvot (halachic treatises) prepared by its members and most likely will ultimately validate several positions. Conservative rabbis will be free to choose which to follow.
Rabbi Elliot Dorff, rector and professor of philosophy at the University of Judaism, is vice chair of the law committee and had been slated to become its chairman last year. But because his views are clearly on the left on this issue -- he advocates full equality -- the committee deferred his chairmanship until the question has been decided.
Dorff believes it is clear that gays do not choose to be gay and cannot become straight and that society has an interest in seeing loving, stable, monogamous relationships.
With those factors motivating his study, Dorff believes it is imperative to narrow down the interpretation of the verses in Leviticus prohibiting male-male sex.
"I am not in any way shape or form trying to ignore the verses or change them by takanah [rabbinic decree]. All I am doing is saying that we should understand those verses differently from our ancestors, who understood them to prohibit all homosexual sex. We should understand them to prohibit only promiscuous, oppressive or cultic sex, but loving monogamous homosexual sex would be outside of those verses and would be something we want to sanctify," Dorff said.
Whether or not Dorff's opinion will prevail, it is clear that within both American society and the Jewish community, the terms of the conversation have changed.
Gays who once would have been thrilled with civil unions are now pushing for full marriage.
And some who might never have considered civil unions are now open to it. Korobkin, the Orthodox rabbi from Hancock Park who is firmly against gay marriage, not only believes the Orthodox community should be more tolerant and sensitive to gays, but he is open to the idea of giving loving partners legal status other than marriage to afford them rights and protections.
"If two people have committed themselves to each other as partners, they should have a right to designate another person of whatever gender as the primary caregiver or life partner, and I think that person should have special privileges," he said. "I think it would be a callous society that would deny a homosexual the comfort and consolation of his life partner."