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New York State is considering legalizing gay (civil) marriages, so tonight on our answering machine we received a message urging us to pray that it doesn't pass because gay civil marriages were, you know, a To'evah, etc. etc.

Whereas it's pretty clear to me that halacha forbids certain same-sex sexual practices, it's unclear to me what the source is of the objection to two men entering into a civil contract which in itself doesn't really have halachic standing anyway (in the sense that a civil marriage is obviously not kiddushin).

In other words, two men go to city hall, sign a contract, receive recognition from a civil government that they are in something called a FIZZBOOP that requires them, say, to support one-another forever. Presumably (correct me if I'm wrong), this would be halachically neutral; it's no different than any other civil contract and it doesn't require anybody to do anything that is halachically invalid. But as soon as you use the English word MARRIAGE to describe it, it's a to'evah?

Or, more specifically... given that Halacha doesn't really recognize civilian marriages between OPPOSITE SEX partners as being sufficient for kiddushin to exist, why the big interest in civil gay marriage?

(Not trying to be provocative here. Just looking for halachic answers to the assumptions I'm making).

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Very good question. Just pointing out, though, children of civilian "non-kiddushin" marriages are not necessarily, and in most cases probably not, considered mamzerim. –  jake Jun 23 '11 at 23:34
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One of the issues with the New York State law (at least as initially proposed) is that it will cause legal problems for religious people and organizations. E.g a religious-owned wedding hall could sued for discrimination for declining to service a gay marriage. –  Ariel K Jun 24 '11 at 4:06
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Untrue. The law under proposal says explicitly "A REFUSAL BY A BENEVOLENT ORGANIZATION OR A RELIGIOUS CORPORATION, INCORPORATED UNDER THE EDUCATION LAW OR THE RELIGIOUS CORPORATIONS LAW, TO PROVIDE ACCOMMODATIONS, ADVANTAGES, FACILITIES OR PRIVILEGES IN CONNECTION WITH SECTION TEN-A OF THIS ARTICLE SHALL NOT CREATE A CIVIL CLAIM OR CAUSE OF ACTION" -- Sorry for the ALL CAPS but it's in ALL CAPS in the law SO PEOPLE NOTICE IT –  Joel Spolsky Jun 24 '11 at 12:12
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@Joel devil's advocate here: what if I own a hotel (not a charity or religious anything) but I view allowing same-sex weddings at it as religiously prohibited facilitation of sin? I don't think that proposal protects me in that case. –  Shalom Jun 24 '11 at 13:39
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Debate of what the civil law should be, as opposed to analysis of its interaction with Judaism, is out of scope here. If you'd like to continue this discussion, please do so in chat. –  Isaac Moses Jul 26 '11 at 17:02

5 Answers 5

"Or, more specifically... given that Halacha doesn't really recognize civilian marriages between OPPOSITE SEX partners as being sufficient for kiddushin to exist, why the big interest in civil gay marriage?"

This is not correct. There are two aspects to marriage - Kiddushin and Nissuin. Kiddushin is specific to Jews, but Nisuin is universal and can certainly exist in a case of civilian marriage.

To understand the Halachik/Traditional approach, I think one should ask what the average person living before 1960 would think of this issue. Say any time from the year 100CE until 1960CE. I think it is quite clear what they would think. This whole question is a very recent historical development, but Halacha has a more traditional outlook on life.

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user876, welcome to judaism.stackexchange.com, and thank you for your views. I hope you stick around and enjoy the site. –  msh210 Sep 11 '11 at 15:01

Here's a more cut and dry answer.

Talmud Bavli, Chulin 92a--b:

עולא אמר אלו שלשים מצות שקבלו עליהם בני נח ואין מקיימין אלא שלשה אחת שאין כותבין כתובה לזכרים ואחת שאין שוקלין בשר המת במקולין ואחת שמכבדין את התורה

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.

Noahide-ism recognizes marriage between a man and a woman (as whatever ceremony that culture considers normative, it need not look like kiddushin); cheating on that marriage would constitute adultery. It does not respect it between two men, two women, siblings from a common mother, or several other very close relatives. See Rambam, Laws of Kings and their Wars, Chapter 9.

Joel, not sure if this point was confusing you: in Noahidism (i.e. Judaism's take on what non-Jews should keep), marriage and divorce are whatever society deems them to be. So New York State's civil marriage and divorce are 100% fine for non-Jews, according to Judaism. Similarly Judaism has no problem with non-Jews eating as much pork as they like. But for a country to officially call something marriage that Noahidism says could never be marriage seems contrary to the value system of Noahidism; hence many Jews find it troubling.

As for how much/little Talmudic mention it gets, again for Jews this was all a moot point, no kiddushin, nothing to talk about. The objection here is related to Noahide law, which only occupies a few pages of the Talmud; in that context, the quotes above are not "scraping."

All the discussions of mamzer and civil marriage/divorce are with regards to Jews, which is a distraction from the question at hand, which is how Noahidism should influence a policy by non-Jews, for non-Jews. (By the way "bastard" is a poor translation; a child born out-of-wedlock is 100% kosher [though people may still point fingers ...]. A mamzer is a product of adultery or incest.)

Lastly there is the distinction between things that are simply not prohibited, versus being actively recognized as official. Rabbi Isaac Arama of Spain (1400s), in his Akeidat Yitzchak (Vayeira #20), sadly noted that yes, some Jewish "bachelors and idiots" will get in trouble with women they shouldn't. But for rabbis to provide communal funds (as some in his time did) for all-Jewish houses-of-ill-repute (as much as it would prevent some problems) would be to institutionalize a transgression, which is beyond the pale. He compares it to Sodom, not in the Christian reading that it was all about sex (of whatever flavor), but by the Talmudic reading that it was all about corruption, power, and selfishness (raping visitors wasn't about lust, it was about showing who's in control); where those problems were not simply overlooked, they became the law.

(Devil's advocate once again, as Rabbi Michael Broyde has observed, US Law allows things that Noahide law doesn't. The same religious protections that let me keep Judaism also let someone worship idols; that's a trade-off we accept. Some have argued that should be the case here too. But you'd asked to understand the objection.)

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Eh? 30? What happened to seven? –  Joel Spolsky Jun 24 '11 at 1:59
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@Joel-Spolsky: See en.wikipedia.org/wiki/… –  Menachem Jun 24 '11 at 2:31
    
@Shalom: Do you have a link to the comment by Rabbi Isaac Arama of Spain, or the name of the Sefer it is written in? –  Menachem Sep 9 '11 at 21:07
    
@Menachem. Akeidas Yitzchak; his essay in Parshas VaYeira on what exactly Sodom was all about. –  Shalom Sep 11 '11 at 2:30

I have no idea if this is the rationale behind the people who are making the phone calls, but what about this:

Midrash Rabbah (26:9) tells us that "The generation of the Flood was not wiped out until they wrote marriage documents for the union of a man to a male or to an animal." (here it is in English)

[Note that Marcus Jastrow translates "גמומסיות" as "hymenean songs" (wedding songs), but the commentaries translate it as wedding contracts. (see page 3 of here)]

In other words, while the generations before the flood had sinned, G-d didn't decide to wipe them out until they started legalizing same-sex marriages.

If legalizing same-sex marriages brought destruction to the world once, it would stand to reason that it could do so again.

[Note that the destruction doesn't have to be on the same global scale as the flood (which G-d promised wouldn't happen again), it could be earthquakes, tsunamis, floods, volcanoes,or nuclear meltdown (Although I'd like to make it clear that I'm not saying any of those things happened because of the legalization of same-sex marriage, just pointing out that there are many destructive things that can happen that aren't on a global level.)]

So, if the Jews believe themselves to be a "light unto the nations", it would be their duty to take a stand against something that could be destructive to the world at large.

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I don't agree on that Midrash Rabbah quote. In Midrash Rabbah Bereshit it 26:5 I see "עד שכתבו גמומסיות לזכר ולבהמה" -- "... until they wrote marriage documents for a male to a beast" -- nothing about male to a male. Please correct me if I'm misinterpreting something. –  Joel Spolsky Jun 24 '11 at 1:27
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@JoelSpolsky I don't claim to know anything about that midrash, but grammatically the pattern "פו לבר ולבר" should mean that the first argument is distributed, meaning "פו לבר ופו לבר", as in this list of karbanos. –  WAF Jun 24 '11 at 2:16
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@Joel-Spolsky: I think that in order to interpret it that way it would have to say something link "...בין זכר ובהמה...", whereas "...לזכר ולבהמה..." would mean "to males and to animals". hebrewbooks.org seems to be down, so I can't look up the Midrash inside. However, "גמומסיות" in the Jastrow dictionary tyndalearchive.com/tabs/jastrow translates it as writing wedding songs, and not marriage contracts. He claims that "marriage contract" would be another word. See brandeis.edu/projects/fse/judaism/juda-essays/juda-ess-samesex.pdf who says that... –  Menachem Jun 24 '11 at 2:25
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In addition to WAF's point, why limit the these "marriages" to males? Even if it did, zachar is a strange word to use if the sin applied to the human-animal relationship (as opposed to, say, "bain adam"). –  YDK Jun 24 '11 at 19:31
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@WAF I know this has been put to bed, but in addition, the previous clause in the Midrash says, "וַיִּקְחוּ לָהֶם נָשִׁים, מִכֹּל אֲשֶׁר בָּחָרוּ" means they took wives from other men, and מִכֹּל אֲשֶׁר בָּחָרוּ further means males and animals. The verse used in the Midrash is referring to men taking wives. Granted, the Midrash is taking the verse out of context (it is from Bereshith 6:2, before the Parashah break starting the story of the Flood), but it is clearly, internally to the Midrash, talking about men taking "wives" - others' wives, other men, and animals - as what led to the flood... –  Seth J Jun 12 '12 at 13:31

It's not true that "halacha does not recognize civil marriage ... between opposite sex partners".

To be more accurate, Halacha does not accept civil marriage, but it does recognize it.
To wit, if a man and woman enter a civilian marriage, while they are not considered halachically married, they would need to have a get (civilian divorce) should they choose to seperate.
And, as you noted in a comment, if they get divorced (civilly, with no get), and then marry some one else - the children of the 2nd marriage are considered mamzerim (bastards). Also, as @Shalom pointed out, cheating on a civil marriage is still considered adultery.

Thus, it could be said that the halachic stance towards civil marriage is: It is marriage, but not halachic marriage.
Just like shooting a cow in the head is not proper ritual slaughter, but that doesnt make the cow any less dead.


Now, wrt gay marriage - I suppose it could be said (and this is speculating) that the objection is the same as above: this is an actual marriage, even though it's not a proper one, and therefore it should not be legalized - since if it were, it would be a valid (yet non-halachic) marriage.

On the other hand, I think @jake's answer catches it spot on: This is more of a social, moral issue. And, as I said in my comment there, the halachic origin is mostly traced back to "קדושים תהיו" (thou shalt be holy) - which is a nice, blanket commandment to eschew any behavior that is considered "indecent", or immoral.

So, to sum up, I think that calling it "marriage" instead of "fizzbop" does imply with it sexual relations (and family life) - thus, homosexual marriage, even without the sexual relations, is immoral - and contrasts kdoshim t'hiyu.

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"To wit, if a man and woman enter a civilian marriage, while they are not considered halachically married, they would need to have a get (civilian divorce) should they choose to seperate." I'm fairly certain that this is not the conclusion of contemporary rabbis. Many a mamzer has been un-mamzered when the rabbi determined that there was some halachic deficiency in his mother's first marriage (e.g. one of the eidim was related to her). –  Isaac Moses Jun 24 '11 at 13:08
    
@Isaac, really? That's not what I remember... Though it does sound vaguely like a discussion I may have heard... Do you have a source for that? –  AviD Jun 24 '11 at 14:16
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There's a machlokes between R.Henkin and R.M. Feinstein over the status of non-halachik marriages for non-observant Jews. It depends whether one applies the principle of "ein adam oseh b'ilaso b'ilas znus". R' Moshe said one does not apply it in such cases, and they are not considered married once they separate. Everyone agrees that for non-Jews, that is the form of marriage that they have, so Halacha recognizes it as marriage (nisuin), just there isn't kidushin for non-Jews. –  Ariel K Jun 24 '11 at 14:25
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I don't remember the sources, but I recall that for relations to be considered marriage, there are 2 requirements: An anan sahadi that there were relations which resulted in a kinyan, and intent by the parties to perform a kinyan. The latter would only apply (using ain adam ose...) if the parties are not aware of any previous acquisition. If these parties married through, say, a reform ceremony which lacked halachic validity (e.g. the witnesses were invalid), nevertheless, the parties are under the impression that they are married and no other kinyan is necessary (i.e. there is no zenus). –  YDK Jun 24 '11 at 19:52

Halachically speaking, homosexual intercourse is all that is prohibited by the Torah. This applies to Jews as well as non-Jews. However, I believe your basic assumptions are correct. Halacha is not violated by a civil contract between two men, whatever it may be (barring such monetary prohibitions as ribbis, ona'ah, etc.)

The only problem I can think of is that for a Jewish man, such a contract might legally prevent him from entering into marriage with a woman, which is a halachic obligation (to get married). But even that is a stretch, for again, it would only prevent him from a civil marriage with a woman, but not a kiddushin.

It seems to me that Jewish religious interest in gay marriage from a civil perspective is not so much a halachic issue as it is a social one. First, it is felt that legalization of same-sex marriage will do nothing to help the moral society in which we live; on the contrary, it will degrade the sacred concept of marriage and the importance of procreation.

But mostly, it is a step further toward a culture that not only accepts, but encourages homosexual activity. It did not take long for Jews to assimilate and inter-religious marriages to be considered normal and accepted by American society. Many are worried that the same will happen with same-sex marriage. American culture will become one that encourages those that are gay (but not necessarily engaging in homosexual activity) to embrace their homosexuality and pursue same-sex relationships and marriages, which will most probably involve violations of halacha.

So, although a "marriage" contract between two men may not be a problem halachically, it is the social consequences implied by its legalization that people are more likely worried about.

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Fair enough. But there seem to be very, very few other examples in which a social policy is promoted that does not have its origins in Halacha (or Torah for that matter, since as far as I can tell Hazal were utterly uninterested in the subject of homosexuality and barely gave it a minute's thought) –  Joel Spolsky Jun 24 '11 at 0:33
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@jake, by the way, the prohibition on homosexual intercourse does indeed apply to non-Jews as well. See Rambam, Hil. Melachim 9:5. –  Alex Jun 24 '11 at 5:59
    
@Joel, I can think of numerous examples of social policy being promoted without origins in Halacha (or tenuous connection, at best). Often, the claim for halachic origin is traced back to "קדושים תהיו" - which is a nice, blanket commandment to eschew any behavior that is considered "indecent". –  AviD Jun 24 '11 at 7:10
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@Jake, for example, orthodox lobbying in Israel to adjust daylight savings time with the aim of minimizing hillul shabbat from movies on Saturday night. That's obviously inspired by a halachic imperative. –  Joel Spolsky Jun 24 '11 at 12:21
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Usually the orthodox rabbinate tends to look to halacha in deciding what's important to lobby for, and the halacha on this particular issue is unusually thin compared to just about any other issue. Where's all the orthodox lobbying for better welfare laws based on e.g. Pe'ah, which torah and halacha actually care about? I could fill a bookshelf with great commentary on Pe'ah, yet you have to scrape to find hazal saying anything about civil gay marriage contracts. –  Joel Spolsky Jun 24 '11 at 12:21

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