What is the halachic source for objection to gay (civil) marriage?

Question

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).

Answer 1

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.)

Answer 2

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.

Answer 3

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.

Answer 4

"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.

Answer 5

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.

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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.