An argument against civil marriage.

Author:Bleich, J. David
Position:Symposium on Obergefell v. Hodges

Permit me to begin with a report of an incident that occurred during the period of the Irish "troubles" as recounted to me by a colleague. Apparently, it was the practice on the part of both sides of the conflict to establish roadblocks in order to stop automobiles for inspection before allowing them to continue. The driver of each automobile was asked, "Are you a Catholic or a Protestant?" The wrong answer could have extremely serious adverse consequences. At one such roadblock, a driver was stopped and asked, "Are you a Catholic or a Protestant?" The driver answered, "I am neither. I am a Jew." That response met with a follow-up question: "Fine, but tell me, are you a Catholic Jew or a Protestant Jew?"

In Utah, other than Mormons, everyone is a Gentile. I am proud to be identified as a Jewish Gentile. As a committed Jew, I share the distress of many fellow citizens of faith in wake of the decision of the Supreme Court of the United States in Obergefell v. Hodges.

The Sages of the Talmud had scant regard for the pagans of antiquity. Not only did they find their religious views and practices to be theologically odious, they regarded the lifestyle adopted by them as morally repugnant. Reportedly, the pagans were untrustworthy, and had little regard for human life. Licentiousness was rampant among them, promiscuity endemic and homosexuality very much a part of the culture of their day.

Nevertheless, the Sages found them to have manifested one redeeming quality and, for that reason alone, worthy of an accolade: they did not draft marriage contracts for homosexual unions (Babylonian Talmud, Hullin 92b). To be sure, the Sages, in that statement, were damning with faint praise, but the praise was genuine. The Sages gave pagan libertines high marks for not having also established homosexual marriage as a legally recognized institution.

Almost modern in their perspective, the Sages recognized that, arguably, society might grant license to consenting adults to act as they choose. What individuals do or do not do may be regarded, within reasonable parameters, as their own affair. But such conduct does not require the imprimatur of the legal system. Certainly, consensual immorality does not demand protection of law in the guise of enforcement of a contractual undertaking. The idolators of whom the Sages spoke received an encomium for recognizing that, although sinners do indeed sin, it is not necessary for society to enshrine sin as a legal norm. In 1892, in Church of the Holy Trinity v. United States, Justice David Brewer wrote, "[T]his is a Christian nation." (1) If so, it is no more than reasonable to presume that "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people." (2)

Today, jurists would find those statements, if not embarrassing, at least quixotic. But the learned Justice found no contradiction between those pronouncements and the protections afforded to all citizens by the First Amendment. As a Jew, I can say only, "Amen." Would that the social and legal institutions of our country were grounded in Judeo-Christian morality! At least insofar as the public arena is concerned, and probably the private as well, we live in a post-Brewer, post-Christian society. The issue involved in Obergefell v. Hodges (3) does not involve a matter of individual morality or personal liberty. The issue is one of societal mores, public institutions, and the nature of our legal system.

Of course, Justice Brewer lacked the power of prognostication that would have enabled him to perceive that the Establishment Clause would one day be made binding upon the states by the Supreme Court's decision in Everson v. Board of Education. (4) Moreover, Justice Brewer's pronouncement clearly reflects a literal interpretation of the Establishment Clause as prohibiting only the establishment of a state church, but in no way precluding governmental preference of religion and religious values. The Framers of the Constitution certainly envisioned a Christian nation, de facto if not de jure. Indeed, the Bill of Rights did not at all interfere in the ongoing relationships with established religions that then existed in nine of the thirteen states. The last of those states disestablished religion in 1833. Quite to the contrary, the First Amendment was designed to prevent the establishment of a national church that would effectively supplant the churches established by the various states. As a matter of historical fact, the Bill of Rights was made binding upon the individual states, rather than upon the federal government exclusively, only after the various state churches had long been disestablished.

Constitutional jurisprudence subsequent to enactment of the Fourteenth Amendment may effectively preclude government action to promote policies viewed with high favor by the Founding Fathers, but it explicitly affirms that the state may--nay, must--maintain "strict neutrality" with regard both to implementing and impeding such values. The decision in Obergefell gives rise to a number of concerns that beg for resolution in a manner consistent with the newly-announced expansion of Fourteenth Amendment protections.

There is a remarkable Talmudic aphorism (Yoma 86b) that declares, in rough translation, "If a person commits a transgression and repeats it, by the third time the act becomes permissible." In the process of repetition, the act comes to be regarded as inherently innocuous. In contemporary nomenclature we might describe this phenomenon as a process of desensitization. With repetition, that which was originally regarded as morally repugnant loses its odium to the point that it is regarded as morally neutral and hence simply a matter of personal preference.

A nineteenth-century rabbinic scholar quipped: "The Sages spoke of the third time that the act is performed. But what if the person commits the same infraction a fourth time? After having already transgressed three times, how does he now look upon the act?" That scholar's incisive answer to his own question was, "By the fourth time, the act is not viewed merely as a permissible form of conduct; it is regarded as a mitzvah!" There is a psychological progression: The repugnant becomes neutral and the neutral then becomes laudable. Habituation leads to desensitization; desensitization leads to approbation.

The Hebrew word "mitzvah" has found its way into English dictionaries and, in the vernacular, the term has acquired the connotation of "a good deed" or what an ethicist might term a "bonum per se," and hence deserving of a merit badge. However, in the Supreme Court decision the institution of same-gender marriage has become a mitzvah in the original and more fundamental meaning of the term. In Hebrew, the term "mitzvah" denotes that which has been dogmatically commanded by the Deity. As the revealed word of God, a mitzvah...

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