Why do you think they call it ‘holy matrimony’?
When groups try to influence legislation based on their religious beliefs, such as those pushing for an amendment banning gay marriage, Americans should worry. Why? After all, one might argue, the Torah itself envisions a society in which civil and religious law and practice are intertwined: adherence to business ethics, for example, is just as much a part of the Torah as Shabbat observance.
Indeed, theocracy is embedded in the very fabric of Jewish cosmology. The Jewish ideal is a messianic age in which Truth will be revealed, and the world will finally be at peace and conduct itself in accordance with Torah law. But there is a caveat: Theocracy is an idea whose time has not yet come. Just look at the restriction of freedom and self-determination that exists in the present-day theocracies of the Middle East.
Though the Torah presents a system in which the religious and the civil coexist, our rabbis were quick to point out that the 613 mitzvot are divided between mishpatim and hukim. A mishpat is a law that makes sense even if it were not divinely commanded and helps to maintain a functioning society, such as the prohibition of murder and of business fraud. A hok is a law that is beyond human comprehension. Thus, in a certain sense, even the Torah notes something of a “separation between church and state.”
One may ask, Where exactly does marriage fall? Is it a mishpat or a hok? It would seem, at first glance, to be a mishpat, as a marriage, via the ketuba (marriage contract), grants the wife certain civil protections. Furthermore, isn’t marriage the natural culmination of a relationship between a man and a woman? But, looked at a little more closely, marriage may fall nearer to the hok side of things.
The Hebrew term for marriage is kiddushin, which comes from the word kadosh, or “holy.” Judaism views marriage not simply as a contract between a husband and wife (which it certainly is), but as a sanctified relationship. But sanctification is a religious, not a civil, concept! While there may be several rational explanations in favor of marriage, the concept of kedusha transcends the rational and is part of another realm altogether. Non-Jews too have viewed marriage as a state of “holy matrimony”; indeed, until recent times, marriages have been performed, or at least overseen, by religious, rather than civil, authorities.
There really is no counterpart to kiddushin in secular law. Two people may marry according to civil law, but the civil ceremony lacks the characteristics that transform a marriage into kiddushin. Jews who marry in a civil ceremony still need kiddushin and huppa to be considered married under Jewish law.
Even if one could pin down some kind of positive policy angle to constitutionally defining marriage as a one man-one woman relationship, it’s hard to understand (a) why, if a couple is not impinging on my freedom, should I impinge on theirs; (b) why such definitions have to come from the government and not from parents, religious instructors, or the religion itself; and (c) how the state definition of marriage is going to protect, physically and morally, our children, as has been claimed by some supporters of the amendment.
Since when are heterosexuals, even those married under religious auspices, immune to the forces that can make them a danger to their children’s physical and moral lives?
Sen. Sam Brownback (R-Kan.) stated, “We’re not going to stop until marriage between a man and a woman is protected.” Is it not protected? Have heterosexuals been prevented from getting married or have they been forced into same-sex relationships?
What our government representatives fail to realize is that promoting stronger family values and fostering the common good of civil society don’t rely on social policy that further restricts individual freedoms. Ultimately, it’s an economic issue, as sound economic policy has the effect of leading to strong — and self-regulated — social policy. It happens by allowing a country to shape a strong economy (aka governmental noninterference), one in which the dollar has real value, one in which the wage earner gets to keep his pay so only one spouse needs to work if the couple so desires, one in which the family is able to spend more quality time together. Such a policy fosters a stronger family-oriented environment.
There are also ramifications when secular legislation is religiously inspired. Consider the era of prohibition (1920-33), when the 18th Amendment became law thanks to a very vocal and influential temperance movement. A movement rooted in religious ideals led to a plague of bootlegging, gangsterism, increased alcoholism, and misallocated federal funds.
The call for a constitutional amendment banning gay marriage is similarly ripe with unintended consequences. Such an amendment doesn’t sound consistent with the Republican rhetoric to keep the federal government from further encroaching on the lives of its citizens. What might be the result of such an amendment? A new agency to enforce the law, with more public employees to support and new levels of bureaucracy? Expensive governmental commissions to study the effects of the new amendment or to study homosexual versus heterosexual unions and child-rearing skills? More cases clogging up the courts?
Marriage, ultimately being a religious institution, shouldn’t be part of the civil code, except to the degree that courts must adjudicate disputes implied by the contractual nature of marriage (which, by the way, is an integral component of Jewish matrimony). Religious groups and people who freely associate with them are perfectly capable of formulating their own definition of marriage and of performing and regulating those marriages.
Realistically, the government divesting itself of its role in regulating marriage isn’t going to happen. But, for the Republicans to suggest such a constitutional amendment — which can only lead to more legislation, cost, and encroachment — is disingenuous.
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