The Supreme Court
has spoken.
In Obergefell v.Hodges, the Court announced that Homosexual couples (hereinafter
LGBT) have a “fundamental right of dignity” to marry each other,
and this “fundamental right” must be upheld by all levels of
state and federal government.
As this decision has
many possible implications for the Orthodox Jewish community, the
major organizations, including Agudath
Israel, the Orthodox
Union, and the RCA
have issued warnings of dangers to come. Some are afraid of the
moral implications in this major departure from the Judeo/Christian
values upon which our country was founded. Others fear that Justice
Alito's prescient warning that it "will be used to vilify
Americans who are unwilling to assent to the new orthodoxy. In the
course of its opinion, the majority compares traditional marriage
laws to laws that denied equal treatment for African-Americans and
women. The implications of this analogy will be exploited by those
who are determined to stamp out every vestige of dissent."
He thus predicts that any refusal to bow to the LGBT agenda will not
be tolerated, and rendered illegal. Matters ranging from clergy
being compelled to marry LGBTs , to bakeries
being coerced to provide wedding cakes for LGBT
couples, coercion of parochial schools to hire LGBT teachers, and
many
other likely scenarios are already being
debated. Religious liberty for those who cleave to their traditional
beliefs is under attack, and only time will tell how much damage will
be done.
I write today to
discuss a different aspect of this saga. Truth be told, the
separation between Church and State has generally been a blessing for
our community. Most of us understand and accept that though we may
not like certain laws that are passed, and deplore the values they
enshrine in our legal canon, nevertheless the price for a free
society in a pluralistic culture is that we have to live and let
live, accepting that in a democracy there will be some ideas more to
our liking than others. Thus the idea that LGBTs have the right to
call their union “marriage” – while not to our liking and while
we may deplore its effect on society – is not something that I feel
we have a right to protest, if the law would have come into being
through legitimate means. We do not, indeed should not, attempt to
impose Torah values upon our host country, but rather should embrace
our role in leading exemplary lives, and hope that the power of Torah
and its values will be a force for the good in our society.
However, this case
was one decided by illegitimate means. The method by which the Court
arrived at its decision concerns me greatly, both as an attorney
interested in Constitutional Law, and more importantly, as an
observer of how the Halachic process is being hijacked by agenda
driven individuals.
In many media
descriptions of the case, the reason that the four “conservative”
justices dissented is due to their anti-LGBT, anti-liberal,
pro-traditionalist political views; they see LGBTs as sinners and
deviants who should be denied the rights granted to heterosexual
couples. The liberal justices, on the other hand, are enlightened
progressives – paragons of tolerance, understanding, and staunch
defenders of liberty and freedom – who saw discrimination against
LGBTs in denying them the right to marry. Reading of the actual
dissents
published by those justices will show
otherwise.
Justice Scalia
began, “The substance of
today’s decree is not of immense personal importance to me. The law
can recognize as marriage whatever . . . living arrangements it
wishes.” In other
words, his dissent had NOTHING to do with whether or not LGBT
marriage should be recognized by society. “It
is of overwhelming importance, however, who it is that rules me.
Today’s decree says that my Ruler, and the Ruler of 320 million
Americans coast-to-coast, is a majority of the nine lawyers on the
Supreme Court. The opinion in these cases is the furthest extension
in fact – and the furthest extension one can even imagine – of
the Court’s claimed power to create “liberties”
that the Constitution and its Amendments neglect to mention. This
practice of constitutional revision by an un-elected committee of
nine, . . . robs the People of the most important liberty . . . the
freedom to govern themselves”. He
went on to describe (with delightful eloquence) that in this decision
the Court had sunk to a new low of legislating from the bench,
claiming to find words and values in the Constitution that simply
aren't there, in order arrive at a desired result, whether or not
supported by any fair reading of the Constitution. In a manner
similar to the famous case of Roe v. Wade, when the Supreme Court
decided that the Constitution (which says nothing remotely about
abortions) forbids any restriction on abortions, this decision finds
the fundamental right for LGBTs to marry somehow embedded in the
constitutional text. I urge the interested reader to read Justice
Scalia's opinion in full. Or as Chief Justice Roberts said,
“Understand well what
this dissent is about: It is not about whether, in my judgment, the
institution of marriage should be changed to include same-sex
couples. It is instead about whether, in our democratic republic,
that decision should rest with the people acting through their
elected representatives, or with five lawyers who happen to hold
commissions authorizing them to resolve legal disputes according to
law. The Constitution leaves no doubt about the answer.”
Political
and Judicial Liberalism vs. Conservatism
The
reason that the conservative Justices are being so vilified over this
opinion is due to a common confusion conflating the debate between
Political
Liberalism vs. Conservatism
and the one between Judicial
Liberalism vs. Conservatism.
We are all familiar with the Political
divide between Liberals and Conservatives. They have different
opinions on things such as whether or not the government or private
individuals should solve problems, how welfare should work, the
merits of abortion, the place of traditional values in society, and
so on.
Judicial
Liberalism vs.
Conservatism is a
different matter altogether.
Judicial
Conservatives, believe
that the role of judges is not to make law or “legislate from the
bench”, but rather to look at laws as they were formulated by the
legislature, and apply them as written, so long as they are not
inconsistent with the Constitution. It is not for a judge to decide
what the law should be, or to fix laws that were written poorly. If
there is a challenge as to whether a law violates the Constitution, a
judge ought to consider the words of the law and of the Constitution,
and perhaps the intent of the writers when it was written. If the
law does not conflict with the Constitution, it should stand; if not,
it should be declared unconstitutional. The legislature then has the
option of either re-writing the law, or seeking to amend the
Constitution if the matter is important enough.
In
contrast, Judicial
Liberals believe that
the Constitution is a “living document”; its meaning changing
with the times. The role of the judge is not to not to read only
the plain meaning of the words, but rather to apply his/her
understanding of the broader meaning of constitutional principles as
they apply in today's world with regard to the values of modern
society, and if necessary, expand the meaning of the words of the
Constitution to arrive at the result that they feel is just and
proper, even if it does not fit in the plain meaning of the text.
The
crux of this debate is whether societal issues are to be decided
democratically between, typically, political liberals and
conservatives, and voted upon by elected representatives, or whether
the Court, by declaring a certain position “unconstitutional”,
can end that debate and render one side of the argument illegal; not
because of the words of the Constitution, but because of the judges'
own sense of fairness and equity.
An
illustrative example of this is the famous case of Roe
v. Wade, holding that
there women have a Constitutional fundamental right to have an
abortion. As is well known, there were and are strong differences of
societal opinions as to whether abortion on demand should be legal,
based on a whole host of reasons. Various states wrote differing
laws as to its legality, depending on the prevailing opinion in those
states, until Roe v.
Wade was decided.
Writing
for the majority, Justice Blackmun held that although the
Constitution is completely silent about abortions, one could discern
from an “emanation of a penumbra” of several of the
Constitution's rights – particularly the Fourteenth Amendments
provision, “nor shall any State
deprive any person of life, liberty, or property, without due process
of law”, (a phrase repeatedly
contorted by the Court into many different meanings in order to
justify whatever the Court wished to hold) – that there is a
general right to privacy, including a woman's right to terminate her
pregnancy. This was a classic case of Judicial Liberalism, in which
the words of the Constitution were said to mandate a result that –
while appearing nowhere in the text – were what the Judges claimed
that the Constitution taught when considered more broadly.
The
main dissent, written by Justice White, set out the basic approach of
a Judicial Conservative:
I find
nothing in the language or history of the Constitution to support the
Court's judgment. The Court simply fashions and announces a new
constitutional right for pregnant women and, with scarcely any reason
or authority for its action, invests that right with sufficient
substance to override most existing state abortion statutes. The
upshot is that the people and the legislatures of the 50 States are
constitutionally disentitled to weigh the relative importance of the
continued existence and development of the fetus, on the one hand,
against a spectrum of possible impacts on the woman, on the other
hand . . .
This, then, is
DIFFERENT than the debate between political liberals and
conservatives. It is about whether there are limits on the power
of un-elected judges to find the result they wish in questionable
readings of the Constitution, or whether the Court must read the
Constitution and laws plainly, and let elected members of the
Legislature decide democratically if and how to change the laws they
deem necessary. THIS was the crux of the issue decided in the
instant case of legalizing LGBT Marriage as well; whether there is a
right to LGBT marriage somewhere in the Constitution (the majority
view), or not (the Dissent). This question is very different from
whether or not government or society should recognize LGBT marriage.
I write about this
at some length because it is important to understand not only
American civic affairs, but how these attitudes are also evident in
regard to recent approach to Halachic innovations.
Halacha
and Constitutional Law
When I went to law
school, I often was asked if there are major differences between
Jewish Law (Halacha) and American Secular law. One critical one is
the following.
Halacha is based on
the revealed will of G-d as given to the Nation of Israel via the
prophecy of Moshe Rabbainu (Moses). That revealed Divine Law is the
basis and measure for all of Halacha, whether explicit or Halacha
L'Moshe MiSinai. While there is some purely Rabbinic law, instituted
through the process of Gezeros and Takkanos, (preventative decrees or
positive ordinances), the great majority is based on Divine Law.
(cf. Rambam's Introduction to the Talmud for an in-depth exposition
of the differences between Divine and Rabbinic law).
Conversely, American
Law is man-made law; it is, as formulated by Lincoln, “of the
people, by the people, for the people”. It was made by humans in a
certain place and time, and ought to be able to be changeable by
humans of another place or time.
Both systems have
ways in which the laws are to be applied to the infinite varieties of
situations that will arise.
In the case of
American law, the legislature is entrusted with making law, and the
judiciary has the power of review to ensure that the laws do not
conflict with bedrock principles, i.e. whether they are
constitutional. These principles are designed to be very firm, but
are ultimately changeable via the Amendment process, which although
possible, is hard to achieve.
By contrast, Jewish
Law is to be applied – ideally by a Sanhedrin, or in its absence by
great Poskim – based on precedent and rigorous Halachic analysis.
They may not make any law that conflicts with Divine Law, which is
eternal and unchanging; there is no “Amendment”-like procedure
available. Rabbinic Law may change very rarely, limited to when
there is a consensus among virtually all accepted great Halachic
scholars of a time that a new idea or change in Rabbinic Law is
warranted. The task of Poskim is not to come up with new law, but
rather to apply the Received law to new situations, by finding the
truest application of timeless principles and texts to the matter at
hand. Innovations, or changes in our Mesorah or traditional
practice, are extremely rare, and are completely out of the question
for basic Halacha.
Given my training in
yeshivos for many years, and the respect thus gained for this way of
thinking, it is unsurprising that I tend to agree wholeheartedly with
the approach of Judicial Conservatives. While the Constitution,
lehavdil, is not Torah M'Sinai, it is an extremely wise document that
has been the basis of this greatest democracy on Earth for well over
200 years, and has served as a guide for the society that has brought
more liberty, equality, and prosperity to its citizens than any other
in world history. The Constitution, very much including its doctrine
of the Separation of Powers, deserves to be treated with utmost
respect. Implicit in that, is that one not read into the
Constitution what is not there, in order to allow, or forbid, some
practice based on whatever reason one may have, no matter how
important. I thus applaud Justice Scalia and the other dissenters for
refusing to be distracted from the great task and responsibility
with which they were entrusted.
Thus far, the
traditional view. Since time immemorial, however, there have been
those who view Torah and Halacha differently. They do not see the
Torah, and certainly Rabbinic Law, as faithful to a Divine Law.
Rather, they see Jewish Law as being the product of human wisdom,
perhaps written with some degree of divine inspiration, but
ultimately human. To quote my neighbor down the street, Rabbi Gerald Skolnik of the Forest Hills Jewish
Center on
the recent LGBT decision, “we
understand the Bible not as one divinely revealed-at-Sinai unified
document, but rather as a product of different Biblical authors . .
.[who] endeavored to translate the nature and content of the
revelation at Sinai, whose exact content we are not privy to, into a
system of behavioral and moral guideposts for the Jewish people”.
All the more so they see the Constitution as the product of human
genius, which ought to be adaptable to change if contemporary culture
and values lead to a different way of thinking.
Until recently, it
was only the non-Orthodox who took this approach to the Torah and
Halacha. Whether it was the Haskalah, Reform or Conservative
movements, or other forms of deviance from traditional views, the
basis of the license that they granted themselves to change Halacha
and permit that which had been always forbidden was to deny the
Divine authorship of the Torah and the integrity of the Rabbinic
Tradition in applying the Halacha.
In our time,
however, a new and radically dangerous strain has developed,
supposedly within Orthodoxy, who while claiming to subscribe to
traditional beliefs regarding the Divine authorship of the Torah and
the Rabbinic tradition, nevertheless has
adopted the Conservative methodology toward Halachic decision-making.
Rather than seeking to submit to Halachic authority, they first
choose the desired outcome and then subjectively build a case that
leads to it, by cherry-picking sources that favor the predetermined
result; much like liberal jurists read into the law that which they
wish to find there. This approach has been employed by Open Orthodox
rabbis in their quest to omit certain morning blessings that do not
conform with egalitarian values, or to allow for women to be ordained
as Rabbis, or in publishing Halachic responsa that permit conversion
without full acceptance of Mitzvot, or of serious changes in
procedures for converting women, or that permit women to nurse in
front on men in shul, and that encourage donating money to build
churches, and many other Halachic innovations that go against our
Mesorah.
Furthermore, unlike traditional methodology – in which contemplation of introducing new practices that overturn long and strongly held Halachic positions may be adjudicated, if at all, only by the most senior Poskim – young Open Orthodox rabbis who have neither served on a Beis Din nor received intensive training with Poskim anoint themselves competent to unilaterally adjudicate the most weighty and sensitive of issues. In short, rather than applying Halacha on its own terms, they seek to adapt Halacha to contemporary values. No surprise, then, that they are thrilled with the Obergefell decision.
Furthermore, unlike traditional methodology – in which contemplation of introducing new practices that overturn long and strongly held Halachic positions may be adjudicated, if at all, only by the most senior Poskim – young Open Orthodox rabbis who have neither served on a Beis Din nor received intensive training with Poskim anoint themselves competent to unilaterally adjudicate the most weighty and sensitive of issues. In short, rather than applying Halacha on its own terms, they seek to adapt Halacha to contemporary values. No surprise, then, that they are thrilled with the Obergefell decision.
In conclusion, it is
important for we who hold the Halachic process sacrosanct, and who
value intellectual and legal integrity in our system of law, both
Jewish and secular, to not be swayed by emotional arguments to
distort the law, but rather to deeply respect the law and the process
by which its integrity is guarded. Only by supporting efforts to
uphold the law, and rather than changing the law to suit us, will we
abide as a people of integrity and eternal values.
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