“Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota? ___Yes ___No”
S.F. No. 1308, as introduced – 87th Legislative Session (2011-2012)
Oy, are we here again already? With a never-ending election cycle, that is played out in the 24×7 media, which in turn feeds the claims, counter-claims and stylized posturing of politicians, it should come as no surprise that the leadership of the GOP-controlled state Senate and House of Representatives has fired the opening salvo of the 2012 campaign. What is at issue? It is not the deficit, or jobs, or health care, although one could be excused for assuming that any of these important issues would figure prominently in the lead-up to our next election of state government leaders. Instead, state senators and representatives have been debating whether or not any Minnesotan may choose to enter into a legal marriage with the person they love.
Specifically, two bills are working their way through the State Senate and House of Representatives that, if approved by both bodies, would place a constitutional amendment before voters that bans same-sex marriage on the 2012 general election ballot. Under Minnesota law, if the proposed constitutional amendment is approved by the legislature it does not require the governor’s signature and goes directly to the ballot. The timing of this measure gives the appearance of strong political motivation, as it has become conventional wisdom that key wedge issues increase voter turnout, especially among socially conservative voters who are also more likely to vote for socially conservative (nearly always GOP) candidates.
In recent decades, many “wedge issues” equate to civil rights for women and gay/lesbian/bisexual/transgender (GLBT) people, and fair and reasonable treatment of undocumented immigrants. These divisive issues are exploited to shore up the power base of socially conservative politicians at the expense of marginalized or otherwise vulnerable people.
Now it is Minnesotans’ turn to determine whether or not we will put the civil rights of a minority of its citizens up to a vote of the majority in 2012. I believe that this must not happen. Enshrining marriage inequality in the Minnesota Constitution is bad law and is inconsistent with Jewish values.
Bad Law
(Disclosure: I am not an attorney, so please use the following comments to begin your own inquiry on the legal consideration(s) of this issue.)
While state same-sex marriage bans have been key issues across the nation for several election cycles, such a ban in Minnesota would be redundant for two reasons. First, Minnesota banned marriages between two people of the same sex by statute in 1997. It is not possible for two men or two women to be issued a marriage license in Minnesota because it would be illegal for authorities to do so.
The second reason that same sex marriage ban amendment is redundant is particularly interesting. Minnesota has the distinction of being perhaps the first state in which its supreme court ruled that there is not a constitutional right for two people of the same sex to marry. In 1970 Richard Baker and James Michael McConnell applied for and were denied a marriage license in Minneapolis. They took their case all the way to the Minnesota Supreme Court and the resulting decision, known as Baker v. Nelson has been binding on state courts for more than 30 years. This is not an arcane legal technicality. Earlier this year, this precedent was cited by a Hennepin County trial court as it dismissed a lawsuit to overturn the statute banning same sex marriage. Minnesota is unique among states in regard to the extent our same-sex marriage ban is deeply embedded in case law. As compared to the legal status quo, a constitutional amendment is clearly unnecessary, and brings forth questions about the political motivations of its proponents.
Proposition 8: California’s Same-Sex Marriage Ban
At the national level, one can’t but help to look to California’s legal battle over Proposition 8. In 2008, the voters of California approved a constitutional amendment banning gay marriage, which had the effect of closing a brief window during which gay and lesbian people were permitted to marry same-sex partners in California. A federal court found Prop 8 to be unconstitutional last year but the ruling was stayed pending appeal that will almost certainly be forthcoming.
The reason I am mentioning California is that the court ruling overturning Prop 8 made some very compelling findings of fact. Among these finds are (emphasis is mine):
- Marriage is a civil, not religious, matter.
- Individuals do not generally choose their sexual orientation. An individual does not, through conscious decision, therapeutic intervention or any other method, change sexual orientation.
- The State has no interest in asking gays and lesbians to change their orientation or in reducing the number of gays and lesbians…
- Marrying a person of the opposite sex is an unrealistic option for gays and lesbians.
- Domestic partnerships lack the social meaning associated with marriage.
- Gays and lesbians have a long history of being victims of discrimination.
- Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.
(Attribution: findings quoted above from Wikipedia article on the ruling, which cites each finding back to the court ruling.)
This case is about a California law, and may not have direct bearing on the ultimate outcome of a Minnesota constitutional amendment to ban same-sex marriage. However, each of these findings is intuitively true and therefore highly relevant. Further, a same-sex marriage ban is unjust. It unfairly targets gays, lesbians and their children for exclusion from the tangible and emotional benefits of companionship that, as we’ll explore next, is a sacred part of creation.
Jewish Values and Marriage Equality
As my rabbi taught recently, as Jews we affirm that every person is created in the image of God, and as we say in the Sh’ma every day, God is one. The natural extension of these two foundational elements of faith and tradition leads us to know that our connection to the Eternal One is inextricable from our connections with one another.
We also have a collective responsibility to honor and respect creation, and the Torah’s telling of the Creation story brings an interesting and perhaps surprising perspective to the question of marriage equality.
Jay Michaelson, a Jewish activist and scholar, visited Minneapolis in April and shared his views on the religious case for gay equality, with a particular focus on marriage. “The first, fundamental problem that God sees in creation is the problem of aloneness,” Michaelson said. “After saying everything is good — the sky, the earth, the trees — suddenly God says, in Genesis 2:18, that ‘it is not good for a person to be alone.’ And so God sets about creating a companion for Adam. Not a biological reproductive unit, mind you — a companion.
“Of course, Adam and Eve are the fundamental couple in the Genesis story, and they are heterosexual. But Adam and Eve are the solution to a problem: the fundamental problem of aloneness. So how do we understand this teaching today, now that we know that for about 5% of the population, that problem can only be solved by a person of the same sex? The teaching holds: it is not good to be alone — and it is very good to be in a loving, committed partnership. For most people, that partner will be of the opposite sex. For some, the same sex. But the religious value is the same in both cases: love heals the first flaw God finds in creation.”
In Michaelson’s upcoming book God vs. Gay?: The Religious Case for Equality, he analyzes the texts that are often used to condemn homosexual behavior and concludes, “there is no contradiction between these narrow prohibitions and the religious value of love. None whatsoever.”
If we are to honor creation and our ties to all people, then we must recognize the inherent sacredness of all loving companionship. To establish laws that explicitly exclude one group of people from forming socially validated relationships – marriage – is to dishonor creation.
What You Can Do
When a democracy faces critical decision points, it is incumbent for all citizens to become involved. Here are a few simple suggestions on how you can engage with the issue of marriage equality.
Learn
Educate yourself on the issue of marriage equality and what is happening in Minnesota and nationally. Here are some resources to get started with:
Project 515: A Minnesota organization with a mission of working to ensure that same-sex couples and their families have equal rights and considerations under Minnesota law.
Outfront Minnesota: Advocates for equality for GLBT Minnesotans.
The Religious Action Center of Reform Judaism: A summary of the Reform movement’s position on GLBT equality, including marriage equality.
Speak Out
Call your state senator and state representative now to urge them not to write inequality into Minnesota’s constitution. Talk to your friends and family and urge them to do the same thing.
Lend Your Support
Any of the organizations identified above can make great use of your time or financial support to further the cause of marriage equality.
(Image: Jewish Women’s Archive)
Good article! I’m a fairly conservative Republican and understand a lot about the arguments for those who want to preserve the current concept of marriage, but I enjoyed your points.
In your opinion, is the ability for a locality like MN to choose the laws they live by also a Jewish value? And if so, why does this trump that?
And also, can you conceptualize a form of marriage that would not be a Jewish value to support? Are there limits to your view of equality?
@Matthew Gallagher: Thanks for your comment!
I believe that freedom from oppression and just governance are Jewish values. The ability for citizens to shape laws either directly, through the ballot, or indirectly, through their elected leaders, comes with the responsibility to maintain a just society. I believe that excluding gay and lesbian people from civil marriage is unjust, and that it is tantamount to oppression for the majority to impose this on a minority. In this instance, I believe the more compelling values are freedom from oppression and maintaining a just society.
Regarding your second question, my argument relates only to equal access to civil marriage for gay and lesbian people. I believe that the injustice at issue is the unfair restriction of access to marriage based solely on the sex of the two people wishing marry.
Chris,
If you think that the statement “Marriage is a civil, not religious, matter” “is intuitively true,” then why bring in the question of Jewish values at all?
I ask not because I oppose gay marriage (no, I support allowing it), but because I think that what Judaism has to say about it is in no way decisive.
What’s more, I suspect that you do, too. I don’t, of course, claim to know your mind, but answer this honestly — if it were somehow proven to you beyond all doubt that Judaism opposes gay marriage, would you switch to opposing it?
If so, then I apologize for challenging you a bit harshly. You are deeply principled, and, I strongly suspect, in a very small minority of our fellow opponents of the gay marriage ban.
If not, then I suggest that this argument, even if not entirely disingenuous, is unhelpful. If anything, by resting a part of your opposition to the ban on religion, you’re giving the ban’s supporters, a so-to-speak home-court advantage — you’re playing on their field.
Let’s be intellectually honest — the principled opposition to a ban on gay marriage is not based on religion. Freedom, equality, maybe — but not religion.
-Mike
P.S. I really like Jay Michaelson’s creative argument from Bereshit.
@Mike: From my perspective, Jewish values are available to guide Am Yisrael, the Jewish people, and are inclusive of – but not limited to – Judaism. That said, while it is true that the constitutional amendment that could potentially be put before the voters in 2012 pertains to civil marriage and not religious marriage, I do not agree that religion has no place in the debate. I support same-sex marriage because everything I know deep in my soul to be true tells me that it is just. I have difficulty looking at this question in a dualistic/either-or frame. The same things that make me a religious liberal Jew tell me that marriage inequality is wrong.
I cannot authentically answer your question asking what I would do if it was proven to me that Judaism opposes gay marriage, because I cannot imagine that happening.
You may argue that if I cite my religious views as I advocate for marriage equality that opens the door to requiring that I validate those who cite their religious views as they argue to limit marriage. I agree that does provide a tactical challenge in the struggle for marriage equality. However, in the end all I can do – all any of us can do – is to speak the truth as I know it. Someone I know told me that the problem with the religious argument against equality for GLBT people is that religious liberal people have ceded the religious argument to the conservatives. How would it be if we could speak out for marriage equality *because* we are religious, and *not in spite of* being religious?
One last thing: I think that the poem “I am a Jew Because,” by Edmund Fleg, describes beautifully Jewish values that are rooted in Judaism but are not limited to religious people:
I am a Jew because my faith demands no abdication of the mind.
I am a Jew because my faith demands all the devotion of my heart.
I am a Jew because wherever there is suffering, the Jew weeps.
I am a Jew because whenever there is despair, the Jew hopes.
I am a Jew because the promise of our faith is a universal promise.
I am a Jew because for the Jew the world is not completed; people must complete it.
I am a Jew because for the Jew humanity is not fully created; people must complete it.
I am a Jew because the faith of the people of Israel places humanity above nations, above Judaism itself.
I am a Jew because the faith of the people of Israel places above humanity, image of the divine, the
Oneness of God.
(http://www.creedia.com/en/content/i-am-jew-becauseby-edmund-fleg)
I appreciate your comment, Mike!
Great poem, Chris and great post. It’s interesting in the context of Torah, because I have heard the argument that same-sex marriage is forbidden; I always answer there are 613 laws, how many are you actually keeping? How many laws are actually in place that are observed by most (or any) of us today? And if you are keeping all 613, you must be sacrificing lambs or something. At the Temple.
But why just focus on the gender issue? I know plenty of people in plural relationships who’d love to be in plural marriage. It’s a state of marriage not only with precedent in human history, but pretty much all the most famous Biblical Jews/Hebrews were polygamists. None of them were gay. Is it injust to keep them from marrying as well?
Because to me the value that you point out, that man is not meant to be alone, is a higher value than some of these other considerations, but where does someone draw the line? And what authority backs up that line when drawn? It would be unjust to keep people apart, but we don’t keep people apart, they just can’t enter into what some say is an arbitrary institution. When can we say, as a community, that we aren’t well served by endorsing something? Does our right to create the communities we want to live in ever trump someone else’s desire to feel accepted?
@Matthew Gallagher:
There is no consideration of the legal status of polygamy taking place in Minnesota. The question here is why qualified gay and lesbian people should be kept from marrying the person of their choice – not how many people can marry. I am not arguing that there should be no rules regarding legal access to marriage, but only that the same rules should be applied justly. The “where will this lead” argument was raised in the twentieth century when laws barring race discrimination in marriage were repealed, and they are being raised again as we advocate to end sex discrimination in marriage. The end of race restrictions in marriage 40+ years ago has not led to changes in laws against polygamy, and there is no credible reason to believe that will happen if Minnesota were to repeal legal restrictions against same-sex marriage. And that is not even on the table.
In my view there is a difference between creating communities where people “feel accepted” and maintaining a just society that provides equal access to civil marriage. There are a lot of places where I could find myself in which I would not feel accepted and, frankly, where I would not in actuality be accepted. For example, as a gay man there are many Orthodox Jewish communities where the validity of the life I live would be questioned by many if not most people in the community. As much as this may sadden me, both for me and more importantly for GLBT people who are born into these communities, I accept that there are communities of faithful people who do not choose to accept me. Further, I accept that someday I may have the opportunity to marry a man I love under the chuppah in my shul, while at the same time other Jewish communities will continue to reserve the marriage ritual for opposite-sex couples. None of this would change if gay and lesbian people were granted equal access to civil (i.e., secular), marriage.
People within religious institutions (synagogues, churches, mosques, and related organizations) are free to set the norms of religious marriage as they see as fit based on their religious views. A common refrain in this national debate has been “If you don’t want same-sex marriage, don’t have one. “ If the citizens of Minnesota get a vote on the sex of the person I can civilly marry, when I do not get a vote on the sex of the person you can civilly marry, that is unjust.
See, Chris, this is what happens when you get religion into it — they throw polygamous patriarchs in your face.
Matthew,
Those are valid points, as far as they go. But turnabout is fair play, too.
Where would you draw the line?
And on what authority?
I presume your line includes marriage interracial unions. Why?
And, just for clarity’s sake — what exactly is wrong with plural marriage (assuming consenting adults all around)?
As for the right to create communities, my answer is whenever it’s a thoroughly private act.
Otherwise, our American concern with individual rights trumps community feelings.
As an example, people may create an all-one-race neighborhood by informal agreement, but if they involve the state by entering into (enforceable) contracts to accomplish this, that’s illegal.
I point on the patriarchs to note that polygamy has a rich history of acceptance, but gay marriage doesn’t. That doesn’t have anything to do with right or wrong, of course. It’s simply a fact, and if the point is whether gay marriage is a Jewish value, then you have to extend that standard to judge other things, otherwise it’s just you twisting religion to your own personal preferences.
When you argue, for instance, that gay marriage is a right, then you have to ask why other forms of marriage aren’t rights, or concede that they are. And if they are, then you have to accept that too. The definition of marriage is what it is. If you want to change it, then change it, but acknowledge that you’re changing it.
I don’t think government should be in the marriage business. I think marriage is a great institution, but social engineering isn’t the government’s job. This is also the position of the Israeli government, actually, who has no civil marriage. Only religious.
Short of that, I think that people have the right of self determination. Gays can form whatever unions are special to them, and if states, through their legislature or through popular vote, want to allow them, or polygamists, or anyone to have access to traditional marriage, then that’s perfectly fine. Let them choose. The authority is the consent of the governed.
I don’t think marriage is a right, period, so I don’t know how civil rights enter into the conversation. I don’t believe laws should take personal affection into account, so it’s not a question of equality to me.
I include interracial unions because there is no difference between a black man and a white man, but there is a difference between men and women. I think it’s well meaning, but very naive to compare gay people and black people. And I think most black people would agree with me. I’ve never got pulled over by a cop in Mississippi for being bisexual.
I just think arguments about why people are terribly bad for denying people their rights aren’t going to fly. They’re insulting, I think. And ineffective.
I want to see people make the case why gay marriage is good for marriage and why people should support it. Don’t say “it’s not a threat to your marriage, and by the way marriage is already ruined by a high divorce rate.” I hate that argument, because it shows a disrespect for the institution. Let me know why marriage will be strengthened by this! And let me decide. People have tender hearts. Nearly everyone, when they stop to think, empathizes. They just don’t want to end up like Europe where the marriage rate is crashing, and the birth rate is crashing, and people care more about taking care of themselves than raising a family.
Plural marriage isn’t wrong to me, but is ridiculously hard, and most people can’t do it. And it opens a huge bucket of worms financially, legally, and emotionally, and to allow it is an endorsement of it, which could seriously mess some people up. But if the citizenry wants it, than they can allow it. And people have the right to protect their communities from those effects. They don’t have the right to keep people apart, in their own eyes and the eyes of God.
Alright. TL;DR, but I hope I answered all your questions intelligently.
@Jenna Zark: Thanks for your kind comments….they mean a lot.
Chris
Matthew,
It looks to me like you and I are coming at this from entirely different perspectives. Yours is communitarian — prove to me that this is good for the community. Mine is that of individual rights — prove to me that this is not an unjustified limitation on individuals.
The American political culture — from the Declaration of Independence and the Constitution onwards in our history holds up individual rights, not community wishes. So, for example, state’s rights have consistently lost out to individual rights.
Maybe it’s not good for the community to have gay marriage. Maybe it’s not even good to have gays at all — they raise all these troublesome issues and divide the community. Jews, too. And blacks. I’m not putting this argument in our mouth, but there is an argument to be made that homogeneity (or at least conformity) is better for the community.
(There’re also powerful arguments that communities are better off from diversity. Just anecdotally (and please excuse the somewhat stereotypical examples) — America is better off with than without Jewish scientists, black athletes, and gay entertainers.)
But that’s beside the point. In America (unlike many other countries) it’s not about the community — it’s about individual liberty.
If I publish a “subversive” newspaper, or put on a play that’s “in bad taste,” I don’t have to prove that this improves the culture. I have a right to do it, whether it’s better for the community or not. That’s liberty.
Interracial couples didn’t have to prove that their marriages improved marriage. Neither should same-sex couples.
To this you say that the cases are not analogous because “there is no difference between a black man and a white man, but there is a difference between men and women.” That just won’t fly.
Of course there’s a difference between men and women, *and* blacks and whites. Not a difference in worth. But there is a difference that we can tell (can see, in these cases). If we truly thought there was no difference, there would never have been discrimination. The whole concept of discrimination would have been absurd. The idea of equality is not that people are actually identical; it’s that we decided that, in things that matter, they are equal. And the most basic equality is equality before the law.
Yes, blacks and gays don’t face identical challenges. But they are both minority groups that are disliked by some proportion of society. And discriminated against.
That’s why they fight for their individual rights.
But they don’t have to prove that they improve marriage for all.
But justice is blind, and a blind system doesn’t take into account race or sexual preference. It’s legal for one man to marry one woman. Everybody IS treated the same. That’s equality.
It also sucks rocks. But if you’re arguing from an equal rights perspective, it’s solid. I’m sorry. Gay people do have the same access to the system, it just doesn’t do anything worthwhile for them, but how is that the government’s problem? I don’t get anything out of a lot of laws, but I have access to them. I have equal access to social security as my grandparents, I just don’t qualify for it.
This is the crux of the problem. I love individual liberty, but we’re not discussing liberty, because no one’s liberty is being attacked. Marriage is not a natural right.
And no, there really is no biological difference between blacks and whites. Laws that treated them differently were based on scientific falsehoods, and unjustified discrimination. That’s why they fell.
we don’t live in an anarchistic, or even libertarian system. We make decisions as a community. No, those decisions can’t infringe on a person’s natural rights. But in all else, we make decisions as a community.
The GBLT community is best served by dropping this empty argument that only makes everyone outrageously outraged, and instead approach each other as human beings, appealing to each other’s best values and humanity.
Dr. King did far more to heal race relations by announcing his fondest hopes and dreams then by shaming others with calls of bigotry. And he even had the right to do it.
And, Mike, you have to address the same questions. If you believe this is about government securing individual liberty vis a vis marriage, then can you conceive of a form of marriage you do not think is a right? And defend why the line is drawn there, and by what authority.
And if you’re not in favor of limitations, then at what point does does it conceivably hurt my marriage through the weakening of the institution?
People always dismiss this as a slippery slope argument, but slopes are actually slippery. There are many groups with lawyers chomping at the bit to protest the government to allow marriage to include them. They’re ready to go, and if you can’t defend the line, then there isn’t one anymore. And why, ethically, don’t communities have the right to keep that from happening?
Maybe you’re right, Matthew, that people respond not to dry arguments about rights and justice, but to emotional appeals based on “humanity.” In that case, nothing I have to say is going to do any good.
Anyway, Chris, I’d like to point out that Matthew and I, by arguing what we argued about, demonstrated that religion is not what’s important in this debate.
@Mike: My eye is on the outcome, not the religiosity of those who support marriage equality. Yet, I remain hopeful that those of us who are religious and support justice for LGBT people can and will bring our whole selves to this debate and the work at hand.
Thanks for lending your voice to the conversation!