Rosh Hashanah Day 2 - 2015/5776 Marriage Equality and the Evolution of Moral Principles

One of the most theologically liberating passages in all of rabbinic literature is found in the tractate Sanhedrin. There (71a) we find a discussion on a text from the Torah. The passage in Deuteronomy (21:18-21) states, “If someone has a stubborn and rebellious son who does not obey his father and mother and will not listen to them when they discipline him, his father and mother shall take hold of him and bring him to the elders at the gate of his town. They shall say to the elders, ‘This son of ours is stubborn and rebellious. He will not obey us. He is a glutton and a drunkard.’  Then all the men of his town are to stone him to death. You must purge the evil from among you. All Israel will hear of it and be afraid.” Though at times as parents we may have wished we could follow through on this commandment, it was quite clear to the rabbis that it is a problematic law - to say the least.

What are we supposed to do when we read such a text? The Torah is supposed to be the holiest book in our tradition. It is the foundation for everything we do as Jews today. The 10 commandments and the statement ואהבת לרעך כמוך - “love your neighbor as you would be loved” are pillars of our religious tradition. So how could that very same book include such a vile and barbaric procedure? How are we taught to love our neighbor when we are are also taught to bring our rebellious son for punishment?

We must understand that everything we do in Judaism is based on the Rabbis’ interpretation of the Torah. The Torah is like the Constitution - providing the general principles - and the Rabbis are like Congress and the Supreme Court - interpreting the Law and enacting legislation that guides our lives to this day.

The Rabbis took the sacred text of the Torah which they believed to be written by God and granted themselves the authority to interpret it. In their view of Judaism as they created it they claimed that the Torah and their rabbinic authority to interpret it came from God at Mt. Sinai. Not everyone in the community accepted the rabbinic innovations. Some, like the kohanim, (the priests in the Temple) thought the rabbis were heretics. But when the Temple was destroyed and the kohanim had no more sacrifices to bring Judaism faced an existential threat. No more sacrifices could have meant no more Judaism. So the Rabbis were ready with this system in place to ensure Judaism’s survival. Out of the turmoil of Jewish history came the form of Judaism we have today.

When the rabbis confronted this text about the rebellious son they were faced with a moral dilemma. Even 2,000 years ago the rabbis realized that executing a defiant child was immoral. Today’s Torah reading - the binding of Isaac and God stopping Abraham’s hand - is proof of our religion’s moral outrage at child sacrifice. If killing a child is morally wrong and that’s in the Torah, how could this statement about the defiant child be in the Torah? And since it’s in the Torah how are we supposed to follow it? And if we think the law is morally reprehensible how can we can change God’s law? Or put another way, how could God command a morally reprehensible law? For the rabbis the difficult question is: if we follow the law we would be committing a moral outrage and if we disregard the law we would be defying God’s word. What are the rabbis to do?

This is where the most stunning statement ever made by the rabbis is written. In that tractate Sanhedrin, which discusses many laws related to the formation and conduct of tribunals and other courts of law, the rabbis also discuss these verses from Deuteronomy. Faced with this moral dilemma they say: לא היה ולא עתיד להיות - The rebellious child case never was and will never be. Incredible. The rabbis have the “chutzpah” to flaunt their authority and to reject God’s commandment. To compensate a little for this remarkable statement they ask, “then why is it in the Torah?” Meaning, if God knew that the law was morally wrong why did God write it in the Torah? They answer, “in order for us to receive a reward for studying it.” In other words the law is still God’s and the Torah in its entirety is considered Divine. Whatever parts may be disagreeable we still need to study it. And even if the rabbinic system entirely rejects a law, that law must still be retained and studied for perhaps someday someone will find a deeper and more profound spiritual reason for the existence of that law.    

This point bears repeating. Judaism as we know it is based on the Torah but more precisely it is based on rabbinic interpretation of the Torah. The rabbis developed their system of interpretation and rabbis over the ages including our own Conservative Movement’s  Committee on Jewish Law and Standards continue in their footsteps. That in and of itself is important to understand the nature of Jewish law and practice today. But there’s a deeper moral point to be learned from this discussion.

By throwing out the law of the rebellious child the rabbis teach us that religious moral principles change over time. That is a remarkable statement. We might be prone to think that religious teachings and foundational principles are eternal and immutable. We might think that something taught 3,000 years ago must still be followed today. Take Shabbat and Kashrut for example. Those are key Jewish beliefs that have withstood the test of time. But eternality and immutability do not apply to everything in Judaism. Our sense of morality can change and in fact must cause changes to be made to Jewish law when necessary. If rabbis understand that morality has changed then it is the rabbis’ Jewish obligation to change the law.

Armed with this understanding of Jewish morality we can better understand modern moral quandaries. Kim Davis from Rowan County, KY is a case in point. Of course you know who she is - the county clerk who refused to issue marriage licenses to same sex couples. According to her Christian beliefs she is religiously prohibited from performing her legal responsibility. According to her understanding homosexuality is a sin and she cannot issue a marriage license to a gay couple because she would be aiding and abetting their sin.

If only Kim Davis were Jewish! She would understand completely how her religious conviction can coincide with the new moral and legal standards of the country. Perhaps I should qualify that statement and say if only Kim Davis were a Conservative Jew. The prohibition of homosexuality is found in the Torah in chapter 18 of Leviticus where it is called an abomination. However in 2006 after years of study and research the Committee on Jewish Law and Standards essentially acted like the rabbis as quoted in Sanhedrin. Rabbis on the committee convincingly argued that our understanding of morality has changed. We know homosexual people to be loving and caring people and their relationships to be just as fulfilling and nurturing as heterosexual relationships. We know that homosexual behavior is the result of biological and genetic predisposition. Judaism must allow all people to live fulfilling and meaningful lives with the ability to find long lasting companionship with a partner. As Genesis teaches - לא טוב היות האדם לבדו - It’s not good for a person to be alone.

By 2006 then, the time had come for the rabbis to throw out that statement from Leviticus and to say that other Jewish moral principles such as כבוד הבריות - the respect for all human beings, and the human need for loving relationships, supercede the now obsolete understanding of homosexuality. Such a process was necessary in order to ensure that Judaism remain relevant to all Jews. The rabbis in their infinite wisdom created the system that way for that very reason. Even in their day the Torah was at risk of being irrelevant. Their system saved the Torah and enabled Judaism to be a source of pride and meaning for generations to come.

That’s why that statement on the rebellious child - לא היה ולא עתיד להיות - it never was and it will never be - was so theologically liberating. We want Judaism to be relevant to our lives. We want to know that our heritage has something to teach us today and something to teach us tomorrow. We want to know that God loves us and that God wants us to reach our potential. If not for the rabbinic innovation Judaism would be restricting to our lives and God would be seen as a harsh and uncompromising disciplinarian. God would be seen as the parent who says, “you better do as I say, or else.”  Though at times such an approach is necessary to keep children in line, it’s not the approach that makes for partnership nor does it create an atmosphere for love and growth. When the rabbis said “it never was and it will never be” they were saying no to God’s law BUT saying yes to God’s love.

This isn’t to say that all of Jewish law has lost all meaning. What I do mean is that the system of Jewish law must constantly be under review and evaluation. We cannot observe Judaism as robots and expect to feel blessed and enriched automatically. We have to think about all of the mitzvot - the rituals and customs - we observe and understand how they add spiritual meaning to our lives. Each and every one of the 613 commandments is an opportunity to experience God’s presence. We follow the commandments not just because we feel commanded by God to do so but also because we want to communicate with God. Being here on Rosh Hashanah, blowing the shofar and reciting the prayers are just some of those opportunities to attempt to feel God’s presence in our lives.

But when one of those commandments has lost meaning - for example the law that stated that homosexuality is an abomination -  we risk thinking that all of Jewish law has lost meaning. When one law becomes archaic or worse hurtful to a segment of the community, then all the laws become suspect.

In order to ensure that Judaism provides meaning and value the system must be constantly evaluated. What sounds funny in Aramaic - פוק חזי - is an important legal concept. It means “go out and see” meaning the rabbis have to leave the academy and actually understand where the community is. They can’t legislate within the walls of the academy at a level that only they could hope to achieve. The rabbis need to know where the community is - what their level of observance is, what their sense of morality is, and then the rabbis can better interpret the laws in a way that the community can appreciate.

Unfortunately, it took a long time for the Conservative Movement Law Committee to “go out and see” in order to reach that new and innovative decision regarding homosexuality. When I was in rabbinical school in the mid-80s the AIDS crisis was widespread and constantly being debated. Millions of dollars were being spent to find a cure or a vaccine and scientists were studying the biological and genetic causes of homosexual behavior. Many religious authorities, including liberal rabbis, wanted to reach out to the gay community and tell them that they have a home in the Jewish community and in synagogue. But those in the Conservative Movement who tried to open the doors of the synagogue were stymied by the traditional interpretation which was still the norm that homosexuality is an abomination. I recall the lengthy “teshuva” - Jewish legal opinion - that my rabbinical school dean Rabbi Joel Roth wrote. For 120 pages he tried to find a way around the verse in the Torah. He tried to find conclusive scientific evidence that homosexuality isn’t a choice but a predisposition. But, as he wrote, to no avail.

There was though a rabbinical student, someone in the year ahead of me, who decided that the Conservative Movement needed a bold and daring interpretation. Brad Artson, now the dean of the Ziegler School of Rabbinic Studies (the LA Conservative rabbinical school) argued like the rabbis in the tractate Sanhedrin. Morality has changed. Society’s perception of homosexuality has changed. Out of a sense of compassion and love we must reinterpret the hurtful law of Leviticus and say that no, homosexuality is not an abomination.

The Law Committee took the unusual step of discussing Artson’s paper. As a student he had no right to present a paper - only members of the committee could do so. Such was the significance of the issue back then that the committee was willing to discuss his paper. Unfortunately it didn’t pass and it would take 25 more years until enough had changed to make a difference in the community. But in those years gay and lesbian Jews who were serious about their Judaism and wanted to live their Jewish lives according to Conservative Jewish law and practice couldn’t find a home. There were only a few radical rabbis who bucked the system and risked their careers to open their synagogues to gay and lesbian Jews. The rest of us - myself included - just followed what the law committee said.

It is remarkable in hindsight to understand how long it takes to shift our moral stance. Though that is the case with most moral issues - for example ending slavery or allowing women to vote - good people are still hurt and marginalized in the process. Society goes through great upheavals sometimes as these changes are made yet we can only pray that in the end it all is for the best. Society is made better and people see the value of the system when all in society are treated fairly and equally. It sometimes takes a statement like “it never was and will never be” to ensure the sanctity of the Jewish legal system.

Justice Anthony Kennedy, writing for the majority in the landmark Supreme Court marriage equality case last June, said the following in his last paragraph: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Justice Kennedy’s statement is so beautiful and profound because society has reached the point where the majority agree with his opinion. Our understanding of morality has sufficiently changed to accept marriage equality as a fact. I have been ready for many years now, at least since 2006, to officiate at a same sex marriage. I just haven’t had the opportunity. Since reading Rabbi Artson’s teshuva as a student almost 30 years ago I’ve learned a lot about this issue and my moral stance has has evolved. I firmly agree that our Jewish moral attitude must constantly progress. It must do so in order for Judaism to survive.

Of course there will always be people who are opposed to change; people who hark back to the days of yore, when they knew what was expected and could safely predict what would happen. There will always be people who feel uncomfortable with any change of routine or change of attitude because it’s easier to just keep doing the same thing over and over again. But for Judaism to remain dynamic, for Judaism to maintain its sense of being a moral and ethical religion that is inclusive of all people it must continue to evolve and adapt. That isn’t radical. That isn’t a progressive or liberal approach to Judaism. It is the most traditional of all, found on the pages of the Talmud itself.

As these high holidays continue let us be inspired by Justice Kennedy’s statement. Let us take to heart the words of the Talmud. Let us make Judaism our own and understand how it truly responds to the moral and ethical issues of today and how it lifts our lives in a sacred and fulfilling way. Amen.