I Believe in Torah, Halacha, and Equality

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On Friday, the Supreme Court of the United States ruled that it is unconstitutional for a state to ban same sex marriage. The issue still divides America, though the latest Pew numbers say 54% of Americans are in favor of gay marriage and only 36% oppose.

In the Orthodox Jewish community, the matter is far less polarizing. I could not find any actual numbers, but I think most people are correct in assuming that the vast majority of Orthodox Jews oppose same sex marriage for themselves and for America. All the mainstream Orthodox Jewish umbrella organizations have issued statements over the past few years reiterating this opposition. Some Orthodox Jews are ambivalent on the issue, and a small minority are in favor of gay marriage.

I celebrate the Supreme Court decision.

A lot of people are confused how an Orthodox rabbi who follows the Torah and its laws could celebrate the legalization of gay marriage.america-reaction-scotus-gay-marriage1.si

I have been mocked, berated, insulted, defrocked, and even ousted from Orthodoxy for supporting marriage equality. I’ve been asked, respectfully and less respectfully, how I reconcile my  belief in marriage equality and my religious beliefs. This is my official response.

Marriage equality is a civil rights issue. Gay people exist. They are your neighbors and co-workers. They might be your friends and family as well. It’s hard to be gay in America. There’s trauma involved. Gay people fall in love. They want to live together as a married couple. They want to get married for the same reasons everyone else wants to get married. Restricting consenting adults from a loving, committed marriage is a form of discrimination. I believe that discrimination is wrong. I believe that citizens of free countries should not feel oppressed. I believe that more freedom for more people is a good thing for everyone, including Orthodox Jews.

Of course, I am concerned about the implications of the ruling. I am concerned about clergy with religious objections to officiating a gay marriage, but those personal concerns cannot trump the more basic civil rights of others, especially people who typically suffer persecution and discrimination.

I am not concerned about slippery slopes or men marrying dogs and bikes and children. Marriage requires consent. Dogs, bikes, and children cannot consent.

I am not concerned that America is becoming a Godless state with no morals. If you want equal rights and protection under the law, everyone else must benefit, too. It is wrong to suggest that equality applies unevenly. Orwell said it best in Animal Farm“All animals are created equal, but some animals are more equal than others.” It is moral to be fair to others, even if those others are people who violate your religious beliefs. There are competing morals in this case, and America is choosing the more compassionate and the more just of the moral options.

Marriage equality is a good thing. I celebrate marriage equality. I am also an Orthodox Jew and I would not perform a religious wedding ceremony that is not consistent with my understanding of Jewish law, including a gay marriage. Those two statements are not contradictory.

There is a long list of things that I think are very important to Orthodox Judaism. Banning gay marriage is near the bottom of the list. Kindness, compassion, and fairness are near the top of the list.

I understand that many Orthodox Jews have visceral fears about this gay marriage because of Jewish law. I hope we can get past those fears and move forward toward understanding and love.

Edited by Elisheva Avital. Hire her!

I BELEIVE IN TORAH, HALACHA, AND EQUALITYOn Friday, the Supreme Court of the United States ruled that it is…

Posted by Eliyahu Fink on Sunday, June 28, 2015

  • Creamsicle

    Just as it is not contradictory for someone to be pro-gay marriage and a practicing, Torah-believing Jew, it is not contradictory to be pro-gay marriage and still mourn the Supreme Court’s decision. Quite aside from the shoddiness of the Consitutional legal reasoning, the finding of a fundamental right to gay marriage, as opposed to state by state adoption/expansion of gay marriage, puts the tax exempt status of every Orthodox Jewish institution in jeopardy.

    • MarkSoFla

      Did the state affirmation (for many decades already) of the right of any Jew and Gentile to marry, and for that marriage to be recognized country-wide also “put the tax exempt status of every Orthodox Jewish institution in jeopardy”?

      • Creamsicle

        Theoretically yes, but practically no. State affirmation is different from a Consititutional finding of a fundamental right (which is why I can be fine with gay marriage on a state by state case but not as a Constitutional right), especially when viewed as long-fought, still in jeopardy, civil rights victory.

        Tax exempt status comes from the IRS, a federal agency, which has a policy against granting tax-exempt statuts to discriminatory institutions. In the 1970s, the IRS took away tax exempt status from Bob Jones University because the university had a policy against interracial dating. The Supreme Court upheld the IRS’s decision under the Anti-Injunction Act, because the university’s argument that its constitutional rights (or freedom of religion) were being violated was “sufficiently debatable.”

        Most importantly, during the oral argument in the Obergefell v. Hodges case the Federal Government (in the form of the Solicitor General) admitted (when asked point-blank) that if the Supreme Court found a right for same-sex marriage, tax-exempt status for religious universities or colleges that opposed same-sex marriage is “certainly going to be an issue.”

        I personally would be greatly put-at-ease, if the President came out said that religious insitutions, educational or otherwise, could not lose tax-exempt status for opposing same-sex marriage.

        • the queen

          Or they could just stop discriminating against gay people, problem solved

          • snowbird

            Her Royal Highness is surely not familiar with our First Amendment.

            It is something very near and dear to all Americans’ hearts, whether they know it or not.

            • the queen

              One is familiar, but not persuaded that it applies to tax exemption for discriminatory groups. The KKK have deeply held religious beliefs about racial segregation; should such a group have a tax exempt status defended by the constitution?

              • snowbird

                In the United States (as opposed to “one’s” different country), only Congress can remove the religious purposes classification under the tax exempt law. Congress cannot (and, demonstrably, would not) limit religious exemption to religions that do not ceremonially accommodate gay unions. The First Amendment would nullify such an act of Congress.
                If the Executive Branch would act unilaterally to un-recognize certain religious organizations on grounds of discrimination (that they would need to claim that such discrimination derives from the SCOTUS decision), they would be in violation of the “Tax Code” statutes and the APA as well as other statutes. Such administrative action of the IRS would be null.
                The Chicken Littles are not fearing for a true loss of exempt status, they are fearing for the increasingly non-redressable administrative imperialism that this government has been blatantly guilty of. The terrible inconvenience of being treated as a criminal when exercising lawful privileges.
                Queeny, your countrymen have already lost this battle many times, but after the sacrifice of our revolt, we are not ready to again lose our independence to a new tyranny.

                • the queen

                  Snowbird, my dear, one would much rather live in a realm where one’s subjects are treasured one and all, and where one’s religious freedom is respected to the extent that one does not use this freedom to defecate on the rights, liberty and dignity of one’s fellow subjects. Treating one’s neighbour as one’s self is not tyranny, it’s theology. One might not be familiar with the intricacies of American Tax Code law, but one is intrigued that the only distinction proffered between the KKK discrimination against racial minorities and religious discrimination against sexual minorities is the status of congressional legislation. One congratulates America on its sacrificial revolt for such a noble cause.

                  • snowbird

                    Laws may not discriminate, nor may the government’s administration of laws. Individuals and private institutions may discriminate unless prohibited by a legitimately legislated statute, which statute may still not be unconstitutional. (such as violating the First Amendment)
                    Individuals and associations of individuals may hold beliefs and convictions that are bigoted, racist, stupid, anti-Semitic, libtarded or otherwise reprehensible. The public nor the government nor enterprise may respond to these bad beliefs in any unlawful way. That’s the way it is in the land of the free.
                    The only way to fend off tyranny is to uphold the rights of people to be bigots and to discriminate.
                    Please stay over there under your tyranny. Your idea of freedom is un-American.

          • Creamsicle

            They aren’t discriminating against gay people, they are discriminating against certain actions that many (but not all) gay people practice. If a Jewish university forbids same-sex among its student body on the grounds that such marriage is forbidden by Jewish law, they might lose tax-exempt status.

            • the queen

              How would this differ from discrimination against interracial marriage? One hopes that you would not defend tax exemption for such a practice, but such marriages constitute ‘certain actions’ engaged in by some but not all African-Americans.

              • Creamsicle

                That is exactly the problem. Once the Supreme Court “discovers” a fundamental right to change the definition of marriage, what had previously been an adherence to, and a practice of, a religious precept consistent with American law, turns into discrimination.

                On Thursday, these religious institutions weren’t discriminating. Now, because of the Supreme Court’s change of the definition of marriage, they are discriminating and are in danger of losing their tax-exempt status.

                In the case of interracial marriage, marriage for millenia prior to the late 17th century did not have a racial component as part of its definition. It was an innovation on the part of (some of) the American colonies to forbid interracial marriage and even those laws did not define marriage as “the union between a man and a woman of the same race” but rather, prohibited interracial marriage (thereby tacitly acknowleging that these were marriages).

                • the queen

                  Discriminating against one’s gay subjects was always discrimination, it simply had not yet been recognized as such. One struggles to find sympathy for taxpayer subsidies for those who discriminate. One also struggles to find integrity in the argument that interracial marriage achieves a distinction on the basis of ‘millenia’. Slavery, marital rape, and much else that one finds displeasing were also stalwarts of the millenia. One suspects, Creamsicle, that you want to have one’s cake and eat it; to claim that one is not a bigot while continuing to espouse bigotry, hiding rather cowardly behind ‘religious freedom’, ‘actions’ and ‘millenia’. Creamsicle, this is not cricket! One must choose between treating all one’s subjects equally, or confessing that one rather finds some subjects to be second rate in rights and dignity and that one is a bigot!

                  • Creamsicle

                    Before the word marriage was defined by the Supreme Court to include SSM, there was no discrimination. Religious institutions could offer the exact same marriage ceremony/service to everyone regardless of orientation becuase by definition that marriage ceremony/service was between a man and a woman. They were treating everyone equally.

                    The purpose of the millenia is to enforce the fact that the concept of marriage prior to the 1990s did not include SSM. The word simply meant something else.

                    Let me use an analogy. A mother has cooked supper for her 10 children, beef stew. One of the children cries, “but Mother, I detest beef stew, it makes me nauseous. Please make me pizza.” The Mother says “I have made supper, you can choose to eat it or you can choose not to eat it. I am not making a different meal just for you, this is your supper take it, or leave it.” Does the child have a claim for discrimination?

    • The Tax Man

      Your response is important, but even more important for the discussion about tax policy. Yes, that boring glass one’s eyes over topic of tax policy. To be certain, I think that taxes should be collected to pay the federal (and in other cases, state and local) expenditures. It should not be used for setting policy because things get confused and obfuscated. Stated differently, if the mechanism of collecting (or not collecting taxes) is causing Americans to be concerned about a public policy that is otherwise moral, the tax collection system must be changed. The tax collection system was designed more than a century ago and is clearly outdated. Because of technological advancements, we can collect taxes much more easily and differently than what was possible back then. Maybe if we consolidate the individual tax returns into one return (with a Federal, State and Local line item on the bottom) and replaced the Corporate Tax code with a Business Receipts tax code based upon money collected (not sales), those like you wouldn’t feel so concerned about a decision which seeks to spread more equality of opportunity.

  • say the whole story

    any Jews who supports same sex “marriage” is an apikores
    any Jew who doesn’t actively oppose same sex “marriage” is kineged halacha

    If you would have urinated on a sefer Torah, you would not have done as big an averah as you just did with this article.

    • Robert Williger

      Thank you for giving me Apikores status. I did not realize I was at such a level however, I am a Jew who 100% supports marriage equality and June 26, 2015 is one of the greatest days for human rights in American history.

    • Creamsicle

      Where does it say in halacha that one must oppose same-sex marriage? In halacha there is no such thing as same-sex marriage, it has no halachic meaning.

      A “support” for same sex marriage can be as little as believing that the Government should not make any laws on the basis of religious principals and should treat everyone equally so long as they are not harming others.

      You are forgetting that we are in Galus. We are guests in a kind and compassionate country and great source of this kindness and compassion is the principal of separation of church and state.

  • J Efram
  • Jonny

    Being that the Torah views Homosexuality as sinful, if one’s moral compass is dictated by the Torah, how could this not be seen as the degradation of society? Particularly in light of what is written regarding the final straw that brought about the flood in the times of Noah: the institutionalization of gay marriage.

    • Creamsicle

      Where is that written?

      • Jonny

        Midrash Rabbah 26:9

        The Talmud, Chulin 92amakes it clear that it violates Noahide Law as well:

        Said Ulla: There were thirty commandments that Noahides accepted, but they keep only three: not to write a ketuba for males; not to weigh dead human flesh in the market; and to show respect for the Torah.

        • Creamsicle

          I can’t find it. Can you provide a link or a quote? Thanks.

          I agree the Gemara says that they shouldn’t do it, but according to most opinions (Lubavitch being the most prominent exception), it isn’t our responsibility to teach the non-Jews the Noahide law but to be a shining example for the nations. (Even according to that Gemara, certainly mishkav zachor itself is far more problematic than gay marriage, but we don’t find Chazal trying to convince the Romans to change their ways).

          • Jonny

            Unfortunately, I don’t have access to a direct quote or link at the moment. It is interesting that many do not believe that we need to teach the Noahide laws. Having grown up Chabad, I was unaware that this was not a mainstream view. However, wouldn’t celebrating a ruling of institutional recognition of sinful behavior contradict the idea of being a light onto the nations?

            • Creamsicle

              I agree. One can support something without celebrating it (like most pro-choice people). One can say I enjoy living in a country where there is separation of church and state because it allows me to practice my religion in peace and therefore I understand that I similarly cannot foist my religious beliefs on others through the power of the State.

              • Jonny

                Well said. I agree, apart from the word support. While I can recognize that the same principals that are necessary for my freedom of religion ultimately must lead to undesirable outcomes as well, I feel it would be nore appropriate to accept these outcomes without actually supporting them.

      • http://www.hebrewbooks.org/pdfpager.aspx?req=14385&st=&pgnum=62 second column it starts Rav Huna beshem Rav Yosef

        • Creamsicle

          Thanks.

    • Mr. F

      It isn’t written anywhere. Maybe it’s a midrash, who knows. Homosexuality is not against the Torah. Man-on-man sex is, technically. A person can’t help if he or she is wired to be attracted to members of the same sex. I’m pretty sure the rabbis in the Talmud recognize as much.

      What one does in the bedroom isn’t our business, and people aren’t meant to be alone. As an orthodox Jew, I don’t believe that it’s for us to dictate what goes on between consenting adults. No, not caring about whether gay people can be together won’t lead to an amoral society. Other things will, so focus on those issues if you want to make a better world.

      • Esther g. Mejia

        Excuse me but each and everyone will be judged by the one and only one G-d. The Almighty says in Leviticus 20:13 “If a man has intercourse with another man in the same manner as with a woman, both of them have committed a disgusting perversion. They shall be put to death by stoning. “.

        • Mr. F

          And when my gay friends meet Him, I’m sure He’ll have an interesting answer for why He made them the way He did, whether He really expected them to be alone, and why they were judged so harshly by ignorant mortals.

          I love the non-answer 2 years later.

        • Esther g. Mejia

          After he abandons his sin, he must immerse (in a kosher mikvah) and fast 233 times. And every morning and evening of the fast, he should recite the Biblical verses: Lamentations Chapter 3 verse 20 and Psalms Chapter 31 verse 23.. He should be whipped and wear sackcloth and place dust on himself and weep more bitterly than someone whose only child died. Refer. Rabbi Eleazar Ben No she Azkari (or Ezkari) in the 1500’s Comman Era. Of course we are no longer able to carry out the same forms of punishment of those times but one can see the severity of THAT GREAT SIN! If you look further you will find in the Christians King James Version by Reyna Valero 1600’s in the book of Corinthians, “HOMOSEXUALITY is an ABOMINATION TO G-D” Sodom and Gamorrah were destroyed by the one and Eternal-One G-D, the G-D of Abraham, Isaac and Jacob; because of the immortality and sin of homosexuality!

    • joe smith

      you can have a scenario where someone really wants something and they just can’t have it. If someone really really wanted to kill, is it discrimination to say they can’t? Are jailed murderers being discriminated against? They really wanna do it? Same thing with Gay marriage… So you want to… So? You may not. It is a straight up Pasuk. You may not. That’s it! Lol Discrimination… What discrimination?

  • Dawn Farry

    Homosexuality and the concerns in the Old and New Testaments where totally different issues than what Homosexuality is today and with regard to this law that has passed. Violence, rape, sex slavery and pagan worship were the issues, not a loving bond between same sex persons. If concerns are around the activity itself, the biblical concerns goes ALL ways for ALl human beings. There is plenty we all can learn from and grow with in understanding, compassion and love through the historic passing of marriage for all. I am grateful and let’s move on to other issues at hand. . . poverty, the lonely, widows and widowers, mentally ill, boundaries set with those in the world who terroruze=mentally conditioned.

  • Joshie Berger

    i must have missed the part where you said, or at least implied, you were gonna discuss how supporting gay marriage and orthodox jewish ‘morality’ can coexist

    • Why can’t they?

      • Aurella

        You are NOT an Orthodox Rabbi, because this goes AGAINST the Torah. Therefore, you do not believe in HaShem, you have your god.

  • jslm/bklyn

    thank you, rabbi. this is an intelligent post, inspired by your appreciation of kindness and compassion.

  • amanda

    how do you define equality? because I don’t think that the American definition of equality is compatible with torah and halacha.

  • snowbird

    Nobody is confused by your position being exposited by am orthodox Rabbi, because you have made out clear that you are neither orthodox nor a Rabbi. Judaism has had plenty of ungrounded and expositionally over expressive so called orthodox rabbi apikorsim, and it is not a novelty.

    Anyhow, your idea that it is discrimination to refuse to change the meaning of the word marriage is so unabashedly absurd that that lack of reasonableness alone renders you unfit as Rabbi.

    • snowbird

      I contend that the vast majority of Jews who consider themselves Orthodox would not eat in the Fink home if they were aware of these posts. (His lack of personal judiciousness in this instance reveals that he may be shavak heteira v’avid issura.)

      of course, there are going to be some who still would, but the incidence would probably be about the same as the percentage of people who are “gay from birth”.

  • the queen

    While one applauds the sentiment expressed here, it does make one wonder: if the writer is intelligent enough to realize that gay people are in fact just regular humans, created as God intended, then how can he square this with subscribing to a religion that is so openly hostile to gay people?

    • snowbird

      Gay people are openly hostile to ordinary ( somewhat religious) people. They and their uncloseted supporters should really scale back on their hateful acts of discrimination.

      Live and let live.

      • Can you cite some examples?

        • snowbird

          for example the open hatred and calls for harm coming from many many gay friendlies directed at photographers, bakers, pizza places, etc.

          • snowbird

            Brendon Eich

            • Neil_Parks

              Mozilla’s shameful treatment of Eich was the #1 reason I dumped Firefox. Finding a better browser (Pale Moon) was icing on the cake.

    • Creamsicle

      The religion is not hostile to gay people, it is hostile to certain actions that many (but not all) gay people practice.

      • the queen

        One finds this comment disingenuous – one could by the same logic argue that one is not racist because one only loathes those black people who have not had the good grace to chemically lighten their faces; both arguments are to one’s mind abhorrent.

        • Creamsicle

          I’m sorry but that analogy doesn’t hold at all. One is a hostility towards actions and the other is a hostility towards lack of action. One is a hostility towards a voluntary action that someone undertakes and one is a hostility towards an involuntary state of being.

          • the queen

            Creamsicle, religious practice is a voluntary action. Falling in love is not a voluntary action.

            • Creamsicle

              Falling is love is not a voluntar action. Acting on that love is a voluntary action.

    • The people may be hostile. The religion is sterile but opposed.

      • the queen

        Forgive one if one struggles to find the nuance between ‘hostile’ and ‘opposed’

  • Mr_Cohen

    Vayikra / Leviticus, chapter 20, verse 13:

    “If a man has intercourse with another man

    in the same manner as with a woman,

    both of them have committed a disgusting perversion.

    They shall be put to death by stoning.”

    NOTE: translated by Rabbi Aryeh Kaplan

    in year 1981 CE in THE LIVING TORAH

    ****************************************************************
    Shaar HaGilgulim, Introduction [hakdamah] chapter 22:

    “He who has sexual intercourse with a man,
    he will be reincarnated as a rabbit or hare…”

    CHRONOLOGY:
    Arizal was Rabbi Yitzchak Luria, born 1534 CE, died 1572 CE.

    שער הגלגולים – הקדמה כב
    הבא על הזכר, יתגלגל בשפן או בארנבת

    NOTE: Sefer Shevet Mussar explains
    that the reincarnation punishments are in addition to
    punishment in Gehinom [Hell], not instead of it.

  • Mr_Cohen

    Sifra comment on Parshat Acharei Mote,
    parashta 8, paragraph 8:

    What did they [the Gentiles of Egypt and Canaan] do?

    A man would marry a man, and a woman would marry a woman.
    A man would marry both a woman and her daughter.
    A woman would marry two [men at the same time].
    Therefore, [the Torah] says:

    “…AND YOU MAY NOT FOLLOW THEIR STATUTES.”
    (Vayikra / Leviticus, chapter 18, verse 3).

    CHRONOLOGY:
    Sifra is also known as Torat Kohanim.

    Rambam attributes Sifra to Rab, who was active around year 220 CE.
    Malbim attributes Sifra to Rabbi Chiya, also active around year 220 CE.

  • Mr_Cohen

    Shulchan Aruch, Chelek Yoreh Deah,
    Siman 252, Sif 8:

    We [must] redeem a [captive] woman before a [captive]
    man [when it is not possible to redeem them both].

    But in a place where they [the kidnappers] are accustomed
    to commit homosexuality, we must redeem [ransom]
    the man [from captivity] first.

    MICROBIOGRAPHY:
    The Shulchan Aruch was written by Rabbi Yosef Caro,
    who lived from 1488 CE to 1575 CE. He was forced to flee
    Spain at the time of the expulsion (or inquisition), eventually
    settling in the city of Tzfat, Israel where he was immediately
    appointed to a position of great importance.

    The introductory section of Sefer Charedim refers
    to refers to Rabbi Yosef Caro [קארו] as Gadol HaDor
    [the greatest Rabbi alive at that time].
    שו”ע יורה דעה – סימן רנ:
    (ח) פודים האשה קודם האיש, ואם רגילין במשכב זכור, פודין האיש קודם

  • Mr_Cohen

    Ibn Ezra comment on Shemot, chapter 20,
    verse 13, (quoting Rabbi Saadiah Gaon):

    [The sin of] immorality [zenut] has many levels [of severity].

    {1}The least severe is intimate physical contact a widow or virgin.

    {2} More severe than the preceding is:
    intimate physical contact between a husband and his wife
    when she is in a state of nidah [spiritual uncleanliness],
    because after a few days she [probably] will be permitted to him.

    {3} More severe than the preceding is: intimate physical contact
    [between a man and] a married woman [adultery], because
    her husband may die, which would make her permitted to him.

    {4} More severe than the preceding is: intimate physical contact
    [between a Jewish man and] a Gentile woman [for example,
    intermarriage] because she is not Jewish, but she could still
    convert [to Judaism] and become his wife [except for kohanim,
    who are forbidden by Biblical Law to marry convert women.]

    {5} More severe than the preceding is: homosexuality,
    which is never permitted under any circumstances.

    {6} More severe than the preceding is: [intimate physical contact
    with] a different [non-human] species, for example, if a man
    would commit intimate physical contact with an animal [bestiality].

    MICROBIOGRAPHY:
    Rabbi Saadiah Gaon was born in Egypt in year 882 CE and
    died in Baghdad in year 942 CE. He descended from a famous
    Rabbi of the Talmud: Rabbi Chanina ben Dosa.

    At age 20 he completed his first great work, a Hebrew dictionary.
    He wrote an Arabic translation of the Torah
    and works of Jewish Law and philosophy

  • Mr_Cohen

    Sefer HaMidot, chapter Niuf (part 2), paragraph 8:

    It is forbidden to judge favorably [lilmode zechut] he who commits homosexuality.

    CHRONOLOGY:
    Rabbi Nachman of Breslov was born in 1772 CE and died in 1810 CE.

  • Mr_Cohen

    Rabbi Steven Pruzansky of Congregation
    Bnai Yeshurun in Teaneck, New Jersey:

    “…the [ancient] Greeks, against whom the Maccabees
    fought and prevailed, were avid supporters of and indulgers
    in homosexuality. It was just one of the immoral practices
    of the Hellenists that the faithful Jews found so repugnant,
    and therefore went to war in order to purge the land of it.”

    SOURCE: Another Mistake on Chanuka by
    Rabbi Steven Pruzansky, 2012/12/13
    http://rabbipruzansky.com/2012/12/13/another-mistake-on-chanuka/

  • Mr_Cohen

    Sefer Charedim, chapter 63, page 219 of menukad edition:
    He who committed homosexuality, after he abandons his sin,
    [he] must immerse [in a kosher mikvah] and fast 233 times…

    And every morning and evening of the fasts, he should recite
    these Biblical verses: Lamentations, chapter 3, verse 20
    and Psalms chapter 31, verse 23…

    And after all these, he should be whipped and wear sackcloth
    and place dust on himself and weep more bitterly than someone
    whose only child died and lies before him…

    Also, the angels that are appointed to watch over that person,
    [they] distance themselves from him…

    MICROBIOGRAPHY:
    Rabbi Eleazar ben Moshe Azkari (or Ezkari) was a popular
    preacher who lived in Safed (Israel) in the 1500s CE.
    His Sefer Charedim was published in Venice
    in 1601 CE, a year after his death.
    Several well-known piyutim (Jewish hymns)
    are attributed to him, including Yedid Nefesh.

  • Mr_Cohen

    Rabbi Moshe Feinstein (born in 1895 CE in Eastern Europe, and died in 1986 CE in New York City) referred to homosexuality as:
    “one of the most disgusting and depraved of all sins” and “repulsive” and “a most severe sin against the Torah”
    and “this detestable wicked sin” and “a great embarrassment for the person and for his entire family”
    in Sefer Igros Moshe, chelek Orach Chaim, volume 4, siman 115.

  • Mr_Cohen

    Midrash Rabah, Parshat Bereshit, Chapter 26, Paragraph 5:

    Rabbi Huna taught in the name of Rabbi Yosef:

    The Generation of the Flood* [Dor HaMabul]
    was not blotted out of the world until they made official
    marriage contracts between people of the same gender…

    CHRONOLOGY:
    Rabbi Huna was active around the year 270 of the Common Era.
    * NOTE: Noah and his family were the only survivors of that generation.

  • Mr_Cohen

    Midrash Rabah, Parshat Bereshit, Chapter 26, Paragraph 5:

    Rabbi Samlai taught: Wherever you find immorality, destruction
    comes into the world that kills both the righteous and the wicked.

    EXPLANATION:
    The context of this teaching indicates that it refers to homosexuality.

  • Mr_Cohen

    Midrash Rabah, Parshat Bereshit, Chapter 26, end of Paragraph 5:

    Rabbi Yehoshua bar Levi taught in the name of Rabbi Padyeh:

    Lot [the nephew of the prophet Abraham] prayed all night for mercy for the people of
    Sodom, and his prayer was accepted. When they attempted to commit homosexuality,
    it was no longer possible to pray for them.

  • Mr_Cohen

    Babylonian Talmud, tractate Kiddushin, page 29A:

    Rabbi Yehudah taught:

    All of the commandments that are responsibilities of
    a [Jewish] father towards his [Jewish] son, men are
    obligated in them, but women are exempt from them:
    to circumcise him, to redeem him, to teach him Torah,
    to marry him TO A WOMAN, and to
    teach him a trade. Some also say: to teach him to swim in water.

  • Eitan Levy

    I was really hoping Rabbi fink would dig in and explore what the role of religious belief in personal versus public life is for a Jew, the question of morality in this case, etc. Sorry to say I’m disappointed. This is basically just a statement that he believes both X and Y and sees no contradiction…

  • Nachum1

    Wow, something went very wrong with Orthodox Jewish education in the last couple of decades.

    No, I’m sorry. You do *not* believe in Torah and Halacha in any meaningful sense of the word.

  • a student

    To read opening sentences of your post, you certainly seem to view yourself as a martyr for equality. It is not common for a martyr to jump off his cross to reconsider his position, and so this is probably a waste of time, judging by your responses to substantive critiques on this blog in the past years, Eli, but I am willing to see if you can respond thoughtfully to criticism of your viewpoint.

    Please understand, Eli, that what is perplexing in your posts is not that you are willing to simply live with the Supreme Court ruling. It is the celebratory attitude you have towards it – the happiness you claim in this decision. The persona you present on this blog is a rabbinic one. The semikha you were granted is of course not a right; it is a privilege that comes with responsibility. You are responsible to present an accurate and authentic picture of rabbinic thought. My point is, If you were posting here as Eli Fink instead of Rabbi Eli Fink, I would not bother at all. Once you post as a rabbi, populism must be traded for honesty.

    And unfortunately, your post smacks of populism and weakly considered sound-bites. While it is true that the secular concept of marriage in the US never matched the halakhic one (indeed, US law allowed a Kohen to marry a divorcee, or a mamzer to marry a Yisrael, contrary to Jewish law), and that the First Amendment will in all probability continue to protect clergy from performing unions forbidden by their religions, this does not take away from the negative attitude of Jewish thought since Sinai regarding homosexual activity and marriage. The Talmud (Hulin 92a) states that despite disregarding their commandments, at least the non-Jewish world does not write marriage contracts for two men. It is this traditional opposition to homosexual marriage that is so hard to square with your exuberant support – all the while claiming (by your very title “Rabbi”!) to represent that very tradition honestly.

    Our texts are supposed to serve as the backdrop against which we articulate our positions. In this case, the categorical statements of Chazal against homosexual ketuba (ie, marriage), should be the starting point for a rabbi discussing the issue. The fact that you feel no need in all you have written to even recognize the sources in traditional Judaism and what they have to say about the topic, much less come to terms with them, is a serious deficiency in your thinking, and calls into serious question the sincerity of your stated fidelity to Torah and Halacha. I think this is what people mean when they say “you call yourself a rabbi” in a sarcastic tone – they are saying that a rabbi needs to ground his opinions (to the extent that he offers them as a rabbi) in traditional Jewish thought, and even when he diverges from this, he needs to explain carefully why, and how he relates to the passages that oppose his viewpoint.

    Saying you are “for” gay marriage, without dealing with the Jewish texts that are against it, is populist, because it hops on the bandwagon of a rainbowed Facebook, instead of dealing honestly and carefully with the real issue for you – being loyal to the texts and at the same time cheer-leading for something the texts see as a moral failure.

    I encourage you to respond to two questions:

    1) It was nice to see your straw-man argument regarding marrying a bike or child, but will you, based on the same considerations you present for gay marriage, support the recognition of incestuous marriage? The litmus test of your populism will be if you can articulate an honest, sincere, reason why incest is different morally from homosexuality, and why you would support one but not the other. Or perhaps you will be brutally honest to your allegiance to equality, and admit to support for polygamous and incestuous marriages as well.

    2) How do you deal with the passage in Chulin 92a regarding male ketubot? Do you reject the passage? Do you deny the aggadta’s binding power even on moral and ethical questions? Does your Judaism function without that passage? Or do you deny the very premise that a rabbi need look to the traditional Jewish sources and engage them honestly when formulating an opinion?

    • Thanks for your thoughtful and forceful comments.

      I literally wrote this short essay to answer these questions by providing a competing set of values and opting for the set of values that was more compassionate. I don’t deny the values you cite. They are authentically Jewish, but I would so prefer not to be stuck with those values. So I sought other Jewish values that are authentically Jewish which would support my preferred position.

      This is an authentic Jewish approach to socio-religious questions. All the poskim and religious thinkers throughout Jewish history have done the same thing. I am not saying I am on par with the great ones, I am just trying to do what they did. In that sense, I believe I have grounded my opinions in traditional Jewish thought.

      I will entertain your questions anyway, because they are interesting, and because I can see your email address and I really like you.

      1. There are several tremendous distinctions between gay marriage and incestuous marriage. For one, there are no people, as far as I know, who cannot love non-siblings. Banning incestuous marriage does not harm or limit or discriminate against a large class of people who are doing nothing wrong. Further, incest is most often a form of abuse. There is a reason to discourage incest that has nothing to do with religion or bigotry. If incest is not discouraged, we might be encouraging harmful relationships. Finally, it’s too easy to misrepresent the an incestuous marriage. With no courtship, no newness, no new commitment to each other, the marriage offers very little in terms of new commitment and even when there is new commitment, it’s too easy to make a sham of it. Marriage is a massive commitment. Committing to you own flesh and blood is hardly similar to marriage between non-blood relatives.

      However, if there was a way to deal with my concerns and grant marriage benefits to incestuous couples, I would have no inherent objections. Yet, I would not celebrate. The reason I would not celebrate is because there is no social wrong that is being righted. We don’t owe them anything.

      But we do owe the gay community a lot. They have been hated, hurt, broken, beaten, demonized, and disrespected. When gay people are treated equally, under the law, that is certainly a moment for celebration. A wrong is being righted. Just because they are sinners in the view of the Torah, does not mean that they are not people who deserve fair and equal treatment.

      2. We both know that this is a poor challenge. One can find divrei Chazal to support tons of positions, mainstream and obscure. The polemic statement in Chullin is clearly meant to teach a lesson, and I don’t doubt that one acceptable lesson is something along the lines of the message you have taken from the excerpt.

      I find the entire passage odd. There is no way to take it literally, as the entire world does not, and did not follow even these three commandments they voluntarily accepted. Further, the implication of the passage is not that these are the most important things in the world. Yet further, the implication of the fact that this obscure, oblique reference is the most damning statement of Chazal on this subject says more by omission than by explication. If we were collecting modern divrei “Chazal” of rabbinic figures and their statements from 2000-2015, gay marriage would be like the most common thing in the anthology. 800 years of Babylonian Talmud and you get this one thing. Seems like this was not a huge thing for them.

      My point is that overemphasizing any one passage from Chazal is somewhat disingenuous, at best. We all use a different cocktail of rabbinic statements to form our world view. This statement is in the back corner of the bartender’s cupboard.

      I hope you feel I’ve addressed your substantive points. I am not sure how much time I will have to follow up if you have additional questions, but you know where to find me and we can continue this conversation any time you like. All the best.

      • a student

        This response is meaningful and though I disagree with its thrust, I am happy to see you respond to the questions – it is quite a relief. (As an aside, since you know who I am, you know any “forceful-ness” was not aimed ad hominem but at the issues being discussed.)

        The question of how we formulate our (moral) worldview out of halakhic texts and at the same time create new ethical and legal structures, sometimes (I agree) bending the texts, is an interesting one and I am glad you touched on it. The great thinkers of the past century have wrestled with this question, and I agree with you that we are tasked with formulating new trails- but until now I did not see on your blog any substantive grappling with the existing pre-modern sources. Without the decision to first look to those texts, we are not engaging in halakhic Judaism. In short, if you had led with this, you probably would get much less flak (not that you are necessarily looking to avoid flak).

        We can continue this discussion, perhaps, in person – as I have plenty to say to your thoughtful response, and will be on a plane in a matter of hours towards California. For the sake of the online discussion, though, I think you are showing your hand when you say “Banning incestuous marriage does not harm or limit or discriminate against a large class of people who are doing nothing wrong.” You are implying that active homosexuals are doing nothing wrong (let’s face it, no one thinks we are talking about sexually inactive gays wanting to be married in sexless marriages). Again, as a rabbi, when you say this, you place yourself outside the halakhic circle, whose tradition has some very forceful things to say about this (I imagine you would never say that a Jew who purposely eats pork is doing nothing wrong). You may want to do that; but your choice is not lost on your readers.

        Furthermore, your arguments against incest are weak – certainly a brother and sister could find themselves in a loving relationship, and the fact is that it does take an objective (or at least subjective but firm) moral/ethical voice to explain why it should be forbidden and illegal.

        As for point 2, reading the passage outside the context of staunchly anti-active-homosexual milieu is naive or dishonest (take your pick). You know well that the attitude towards gay marriage evinced in it is entirely in step with the general view of active homosexuality in society in the Talmud. It would be a very creative reading indeed that would succeed in bifurcating between sex acts and marriage, saying, “yes, 100% of Chazal held homosexual intercourse an abomination, but they would all be open to homosexual marriage and it is just one weirdo who wrote that passage”.

        To clarify, I am extremely compassionate (I think you know I am) towards homosexuals in orthodoxy, and am willing and motivated to find them halakhic solutions. But the idea that the (metaphorically) violent redefinition of “marriage” to include man+man would be a supported change by halakhic tradition is very difficult to defend, unless you break ties with halakhic literature throughout the ages – something I doubt you can do while maintaining the title of “orthodox rabbi”. Sometimes, the limits of a system’s flexibility can be reached, modern day sensibilities notwithstanding.

        • snowbird

          “But we do owe the gay community a lot. They have been hated, hurt, broken, beaten, demonized, and disrespected. When gay people are treated equally, under the law, that is certainly a moment for celebration. A wrong is being righted. Just because they are sinners in the view of the Torah, does not mean that they are not people who deserve fair and equal treatment.”
          Rasha M’Rusha, and, imbecilic too…

          • a student

            This is not worth responding to, but since it is in direct response to my comment, I will just say that it neither convinces anyone, nor does it create any honor for God or Torah. Quite the opposite on both counts.

            • snowbird

              Sorry,
              I did not mean to directly respond to your comment.
              I was just quoting E. Fink.
              No dishonor to God in averring that his remarks are wicked. Also imbecilic. Who even says that I am a rabbi or other representative of “God and the Torah”? I could be a secular professor who is disturbed with perversion of logic – to the point that I consider it wicked. Maybe my “Torah” is the Constitution, and those who shred it are wicked in my system of values.

      • Holy Hyrax

        >But we do owe the gay community a lot. They have been hated, hurt, broken, beaten, demonized, and disrespected. When gay people are treated equally, under the law, that is certainly a moment for celebration. A wrong is being righted. Just because they are sinners in the view of the Torah, does not mean that they are not people who deserve fair and equal treatment.

        Then don’t hate, don’t break, don’t beat, don’t demonize, and don’t disrespect. THAT would be righting those wrongs. Gay marriage does not follow from those wrongs.

    • Milton

      This is a superb post. One critique- I think you’d have a stronger argument using polygamy to make your point instead of incest. As Rabbi Fink pointed out, one can certainly make a coherent argument why it’s in the interest of the government not to recognize incestuous marriage. Polygamous marriage, on the other hand, as the Chief Justice pointed out, is nearly impossible to distinguish with gay marriage. (As an example of how hard it is to come up with a real distinction: Judge Posner- usually quite a bright fellow- argued that polygamous marriage is different because if we allowed it we’d run out of women!)

      • I was grateful for the incest question. Polygamy is indeed much more challenging to distinguish. It’s also less important that polygamy be unlawful. But I do have a distinction in case I do get asked… 😉

        • Milton

          I’ll take the bait- how do you distinguish?

        • David

          A distinction can always be made, but in this case it undermines your original argument since someone with your intelligence could surely come up with distinctions between gay and heterosexual marriage as well that could serve as a reason to be opposed to legalization. Instead you choose to follow your feelings and come up with a rational for enthusiastically supporting the decision for gay marriage. It seems that your conclusion is framing your argument rather than vice versa.

          When it came to the shabbos light switch you correctly put forth that all halachic opinions should be grounded and supported Halacha, I find it odd that you abandoned that standard in putting this article together. I think your heart is in the right place but your efforts should be focused in finding a halachic justification for it.

          Do you really have doubts that the Torah would not support the idea of society acceptance of gay marriage or are you writing it off as not as important as correcting the historical persecution of gays? (It is interesting that the symbol used to support this agenda is a rainbow given what the rainbow represents in the bible.)

  • L10

    Great post! I could not agree more. Since those who want to conflate religion with secular government are, let’s face it, not our religion – it’s to Jews’ advantages to keep the Fundamentalists well out of our laws! Your points on equality are also well taken!

  • Neil_Parks

    Now that the #gays have won, they need to stop #bullying the #bakers, #florists, #photographers, and other #ConscientiousObjectors.

  • Holy Hyrax

    Here is what I was hoping to read but wasn’t written. If this is a civil rights issue, well than, ought we all treat it like all civiil rights? Let’s use a real example: A while back a white preacher in Tennessee refused to marry an inter-mixed couple. Now, he didn’t mean it should be ILLEGAL, but that HE doesn’t’ want to marry them. Nobody demanded he be arrested, but he himself was vilified all over the internet. Enter gay marriage. While race has no internal connection to religion with issue of marriage, homosexuality certainly does. So my question is, if this particular preacher was vilified as an individual for his MORAL (not legal) choice not to marry people that go against his conscience, what is going to happen when religious people are going to be vilified for their religious practice as a whole that denies gay marriage in general? This discussion is not going to end with the legal battle being won. It’s clearly going to spill over into whether religious people are being unethical or not (just like this preacher). If Rabbi Fink thinks this is a ‘just’ decision, than why ought religion not be ‘just’?

    How is Rabbi Fink going to defend his fellow co-religiongists from the accusations that they are practicing a bigoted religion? That their religion is ‘unjust.’ If this preacher was declared a bigot for his personal opinions, why aren’t all orthodox Jews bigots? It’s on thing to be happy about the legal decision, it is quite different in dealing with the social consequences that will follow.

    • snowbird

      HH,
      As always, don’t expect a substantive response from the ex-orthodox, now non-orthodox, rabbi.
      I, however will tell you his true answer: . . . “My coreligionists should not be bigoted. Unfortunately, they are still many orthodox Jews who are bigots, but change does come, sooner or later, PTL! In my reasoned view, which reasoning is in line with the methodologies of the great rabbis throughout history, Judaism does not treat gays or any humans as unequal just because of the way that G-d (sic) created them. All people, even you and I and Rashi and Rabbi Akiva and Moses, have struggles in our lives. Judaism has compassion for the gays’ struggles that have been foisted upon them by their creator or whatever. We should always celebrate when wronged humans are afforded equality in our progressing-toward-perfection society! Lovingly, Eli.”
      Hope this helps.

      • Holy Hyrax

        I guess you called it.

        • Holy Hyrax

          Rabbi Fink, will you be responding or not?

  • Stuart Liss

    I love this article. I have been desperately seeking a good horse sh*t based fertilizer for my Azalea bushes and this will work perfectly. Thanks, unbelievably witless writer of drivel. I’ll send you a grafting.

  • YEA

    “Those who find room in it for celebration or “mazal tov” wishes (invoking “It is not good for man to be alone”) demonstrate that their chinuch was never touched by the spirit of Chazal. They have no claim to the title ‘Orthodox.'” — Rabbi Yitzchok Adlerstein

  • YEA
  • bys

    This is just another example of putting subjective feelings before objective ideals. G-d is against homosexuality. Though He doesn’t say to hate those who practice it, He still calls it to’eva. Deal with it. G-d is merciful and compassionate, and, as a rabbi, I’m sure you know that. So if He still says to kill Amalek, or not let agunas remarry without a get, or not let divorcees marry kohanim, or to kill every Philistine soul from ancient Canaan – we can either put our own subjective feelings forward and not comply, or we can understand that He must have a good reason for saying what He did. IOW, G-d calls it “to’eiva” anyway. To publicize your “celebration of the Supreme Court’s ruling” is celebrating your own feelings way more than His ideals.

    • YEA

      From ילקוט שמעוני

      ויבא שאול עד עיר עמלק וירב בנחל

      אמר ר’ מני:
      על עסקי נחל, בשעה שאמר הקב”ה לשאול: לך והכית את עמלק!
      אמר: השתא ומה על נפש אחד מישראל אמרה תורה הבא עגלה ערופה בנחל, כל הנפשות האלו כלן על אחת כמה וכמה.
      אם אדם חטא בהמה מה חטאה, אם גדולים חטאו קטנים מה חטאו?!
      יצתה בת קול ואמרה לו: אל תהי צדיק הרבה.
      ובשעה שאמר לדואג: סוב פגע בכהנים, יצתה בת קול ואמרה לו: אל תרשע הרבה.

  • Holy Hyrax
  • Holy Hyrax

    Are you going to respond to my question or not?

    • I don’t know what your question is, but I will either reply in the comments or a new post at some point.

      • Holy Hyrax

        How could you reply if you don’t know what my question is?

        My question is down below (long paragraph)

        • Holy Hyrax

          What happened to the reply? For such an important question, you sure are taking it lightly.