August 4, 2010
Calif. Rabbis Respond to Prop. 8 Ruling
Today’s historic ruling overturning Proposition 8 by federal court judge, Vaughn Walker is a victory for equality in this country. It is an affirmation of the US Constitution’s pledge to protect a minority from the majority. His eloquent ruling made clear that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples.” As Jews we understand that all are created in B’tzelem Elohim in God’s image. For those who consider themselves traditional Jews who oppose marriage for same gender couples-that same U.S. Constitution guarantees that they do not have to officiate at such weddings. But my religious Jewish values teach that gay men and lesbians ought to be able to make a Jewish family and have that family legally recognized and protected with the same rights, privileges and responsibilities.
Rabbi Harold M. Schulweis
I would be honored to officiate at a wedding where two Jewish human beings seek to deepen their marital relationship with the blessings and traditions of our people. The right to marry is a right that expresses the comprehensiveness of our democratic state. The decision of Judge Walker deserves the applause of the secular and religious communities. Not to offer any couple the collective wisdom of our biblical and rabbinic sages runs counter to Jewish compassion and justice.
Rabbi Lisa Edwards
Two steps forward, one step back is still one step forward. Today’s ruling is one BIG step forward as Federal Judge Vaughn Walker ruled on what so many American Jews have understood for years already:
The United States constitution was created to give and protect rights, not take them away.
The 44 gay and lesbian couples at whose weddings I officiated in 2008, as well as my wife and I, know on a daily basis what Judge Walker ruled today: the civil right to marry belongs to everyone.
Fairness, dignity, equality – today we move one step closer, though the long walk continues, toward achieving what we long for – the opportunity to create families, recognized and appreciated by the society in which we live.
Rabbi Daniel Korobkin
The Orthodox Jewish community is quite diverse and so it’s impossible for one person to represent the full spectrum of views contained therein. I do, however, think it’s fair to say that most Orthodox Jews believe, as do Jews in general, that homosexuals deserve our respect, sensitivity, and friendship. Those who are seeking to lead a meaningful Jewish lifestyle and live within the confines of their respective communities need to be embraced and made to feel that there is a place for them at our tables and in our synagogues.
At the same time, most Orthodox Jews believe that having governments endorse gay unions with the imprimatur of “marriage” is a mistake. It distorts the Torah’s definition of marriage, a definition which has been the standard for every Jewish, Christian, and Muslim society for centuries, and thus distances our present society even further from its Judeo-Christian roots. It is also bad for civilization as a whole from a sociological standpoint, irrespective of that society’s commitment to biblical values. I strongly disagree with Judge Walker’s argument that “gender no longer forms an essential part of marriage,” which formed, in part, the basis for his ruling. Gender not only remains an essential component of marriage; it is vital to marriage, and an even more vital component of child-rearing, the natural by-product of most marriages.
The latest ruling by a federal judge that Proposition 8 is unconstitutional is therefore disappointing, if not surprising. My understanding is that this is just one step in a long legal process that is still unfolding. The judge’s ruling today has no bearing on the fact that many Orthodox Jews support Prop 8. I also need to underscore that, contrary to the judge’s interpretation of the motives of Prop 8 supporters, my support is not at all motivated by malice or hatred of homosexuals, but rather what I perceive is in the best interests of our community and society as a whole. Despite my opposition to gay marriage, I remain steadfastly committed to respecting and upholding the religious rights and privileges of individual homosexuals within my community.
Rabbi Don Goor
In Shofetim, our Torah portion next Shabbat, we’re taught that as Jews we must actively pursue justice. Yesterday’s court decision is a brave step toward achieving justice for a population that so clearly faces discrimination. As Jews we are commanded to know the heart of the stranger, the widow, the orphan. By allowing Gays and Lesbians the right to marry, the court follows in the Jewish tradition of understanding the heart of those without power in society by recognizing their pain and granting them rights. As someone who’s marriage is not been recognized by this state, I am overjoyed that justice has been done - justice that directly effects my life.
Rabbi Ron Stern
The ruling yesterday is an important step forward making the right to marry an essential right for all Americans regardless of their sexual orientation. Unfortunately, the complexities of our legal system and the lingering voices of opposition still stand in the way of achieving true equality. As a rabbi in the Reform Movement of Judaism, I have long recognized that our tradition must adapt itself to our changing understandings of human sexuality and have proudly officiated at and participated in Gay and Lesbian weddings, several during the brief time that Gay marriage was legal in California. I eagerly await the day when the country catches up with progressive Judaism and extends the legality of marriage to Gay and Lesbian couples so that the status of their relationships receive equal standing in the law, just as they are blessed by the sanctity of God’s presence in our Jewish tradition.
Cantor Evan Kent
Rabbi Dov Fischer
First, the judge’s decision has no meaning either way. Judge Vaughn Walker, who handed down the decision unilaterally overturning the voters of California for the second consecutive time, happens to be a real mensch of a guy. I argued a case before him, and the experience and outcome was exceptionally gratifying. He has been around a while, and he is the senior district judge (i.e., the leading federal trial-court judge) in the San Francisco-area federal district. He also is one of only two federal judges in the United States who is openly Gay. Therefore, everyone knew that, as a liberal and Democrat-appointee and an openly Gay judge, he would find Proposition 8 unconstitutional. The only question was how long it would take.
In American law, there is a concept called “justiciability.” Under that concept, the United States Supreme Court typically cannot enter into a dispute and hand down its ruling until a federal appellate court or a state supreme court has ruled on an appeal from a lower trial court. Only then, may the losing side in the appeal seek certiorari (i.e., final appellate review by the Supremes). Therefore, in order for California’s Proposition 8 to go before the U.S. Supreme Court, there first had to be a trial in federal district court, then there must be a mid-level appeal . . . and only thereafter can the losing appellate party seek Supreme Court review. There is no way to short-cut the process, except in certain unusual situations.
So Gays who want to marry in California needed to file a lawsuit against Prop 8. They could have filed their appeal in any federal district where California’s Prop 8 threatens to discriminate against them – namely, any of the federal districts in California. Thus, they could have brought their action before a conservative judge in San Diego . . . or in San Francisco perhaps before one of the only two federal judges in America who is openly Gay. Their choice was sensible.
Now that District Judge Walker has ruled for the Gay plaintiffs, the defendants who support the ban on Gay Marriage will appeal to the U.S. Court of Appeals for the Ninth Circuit. As it happens, that appellate court is perhaps the most liberal appellate district in the United States. Sixty percent of its judges are Democrat appointees, and 40% GOP appointees. Thus, the Ninth Circuit consequently is the most frequently reversed appellate circuit in the United States. See, e.g., Henry P. Wickham, Jr., “Adult Supervision for the Ninth Circuit Court of Appeals” http://www.americanthinker.com/2006/10/adult_supervision_for_the_nint.html
There are currently 28 or so appellate judges on the Ninth Circuit. Appeals are heard by panels of three. Which three get assigned to be a panel for which appeal is a matter that is random and impartial. As a result, odds are that the panel will be comprised of two liberals and one conservative, and the Ninth Circuit almost surely will agree with Judge Walker and will affirm his decision by a 2-1 vote that Prop 8 is unconstitutional. However, there is always an outside chance that, by a quirk, two conservatives would be on the three-judge panel. If, through such a quirk, the appellate panel vote comes out 2-1 to uphold Prop 8 banning Gay Marriage, then the Gay plaintiffs will seek an “en banc” hearing. In an “en banc” hearing, the circuit agrees to a “do-over,” to hear the appeal all over again, this time before a mega-panel comprised of all the judges in the circuit. (Actually, for reasons extraneous to this discussion, the Ninth Circuit is so over-sized that the “en banc” court would be comprised of only eleven of the 28 judges for the rehearing. That would almost surely result in Judge Walker being affirmed by a vote of 7-4 or 8-3, with Prop 8 struck down.)
At that point – and only at that point – the side that loses the appeal (probably the side that supports traditional marriage) will appeal to the U.S. Supreme Court. Although the Supreme Court agrees to hear only a minuscule percentage of appeals to them, they will take this one. In all probability, after all the briefs are filed and the case finally is argued in open court, 4 of the 9 justices will rule in favor of Gay Marriage – the three Jewish justices and Justice Sotomayor. And in all probability, 4 will rule in favor of the voters and Prop 8: Chief Justice Roberts and Justices Alito, Scalia, and Thomas.
That means that Justice Kennedy probably will decide whether the voters of California constitutionally may vote to limit the definition of “marriage” to one man and one woman – or whether such a restrictive definition unconstitutionally infringes on the rights of gays to marry. Justice Kennedy’s decision probably will impact on the direction of at least 45 states, and it will become the precedent that will define the issue for a generation or two. By contrast, if he permits “Gay Marriage,” then I expect that Utah polygamists may seek to test the parameters of the ruling to see whether polygamy could be legal.
As a result, we all are waiting to see what Justice Kennedy decides. Yesterday’s decision by District Judge Walker carries no significance.
Rabbi Neil Comess-Daniels
Yesterday’s ruling that clearly states both the historical and legal arguments for declaring the unconstitutionality of Proposition 8 is a victory for all Americans. Judge Walker’s decision re-enforces what is not only an American value, but an American right – concretized in the Constitution. Here it is (Article XIV): “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of theUnited States. Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” We Jewish Americans have depended upon this Article many times in order to insure our equal status as in this country. We have depended upon this Article not to be voted away by the majority. That is what happened to Americans who happen to be gay or lesbian in California. The majority of Californians voted away their right to be fully American. We in the Jewish community have an obligation to see that Judge Walker’s ruling is defended and validated all the way to the Supreme Court if necessary. If we do not, then we have abrogated our privilege to seek protection under Article XIV.
We are commanded not to abuse the stranger. How much the more so should we not make strangers out of our fellow Americans and our fellow human beings. I look forward to the day when I will once again be able to freely and proudly say “by the power vested in me by the State of California” when I officiate weddings for gay and lesbian couples.
Rabbi Morley T. Feinstein
When God saw all that God made during creation, God declared all of it “very good.” God made no distinction between men and women, black or white, old or young, gay and straight. God didn’t offer “moral disapproval” at the dawn of creation. Overturning Proposition 8 allows for the full freedom of monogamous choice for all God’s children, who were all made b’tzelem elohim, in God’s image.
Rabbi Laura Geller
The decision to allow gay and lesbian couples to marry is not only a constitutional issue; it is a Jewish issue as well. While our Biblical text in Leviticus seems, at first glance, to be in conflict over homosexuality, it is clear that what the Bible is describing has absolutely nothing to do with committed homosexual or lesbian relations. In other words, the Torah is not talking about gay and lesbian marriage.
In my view, the values of Judaism support gay marriage. First, the creation story in Genesis makes it very clear: “It is not good for a person to be alone; I will make a partner for him.” Note: a person, not just a heterosexual person. All persons, all human beings, deserve to have loving partners. Second, the central value of Jewish tradition is that every human being is created in God’s image. Therefore every human being deserves dignity and respect, and it is up to us to be partners with God to create a world in which every human being is treated with respect and dignity. Freedom to marry the one you love is essential to respect and dignity. And third, the value of families, of nurturing the next generation, is among the most important of all Jewish values.
I officiate at same-sex marriages because I believe in marriage. I believe that the benefits that married couples receive support families and help families raise children together. Those benefits (including joint insurance policies for a home, inheritance rights, Social Security and Medicare benefits, bereavement-leave, being next-of-kin for hospital visits and medical decisions) are important to create the comfort and security that people need in long-term loving relationships.
The way our tradition thinks about homosexuality has changed since Biblical times. But some things never change. God is present when two people commit their lives to each other and become one family.
Rabbi Stewart L. Vogel
The ability for gays and lesbians to have their committed relationships acknowledged by law with all of the benefits and requirements therein is a Jewish value. While some Jewish religious traditions might continue to struggle with the question of homosexuality, the question of the legal rights of gays and lesbians is an entirely different manner. The Torah teaches us that “there shall be one law” for everyone (Lev. 24:20) and in regard to legal and religious and civil law the rabbis learned to distinguish between them. The violators of religious law were not punished by human courts while their civil rights were still guaranteed. This is the approach that we must take towards the issue of same-sex marriages- “there shall be one law.”