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| Brad Blog May 21, 2008 |
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| Thursday, 22 May 2008 | |
 Court Stumbles Badly… Into Good Social Policyposted by Brad Hirschfield in reaction to the recent US Supreme Court ruling on same sex marriage in California The Supreme Court of California has stumbled badly, even if in so doing it has stumbled into what amounts to a good conclusion. With the thinnest of legal reasoning, they have opted to make social policy rather than adjudicate the law. Simply asserting that marriage is a constitutional right does not make it so, and the fact remains that their ruling about this so-called right, does not extent to all those who want to be in a marriage -- their ruling clearly rejects extending their new definition of equal protection to either polygamous marriages or those between close relatives. In other words, the court stepped in to “resolve” an issue which deeply divides both our nation and the voters of California (49% of whom oppose gay marriage and 45% of whom favor it). In fact, they have trumped the rights of individuals to make this decision and done so in a way that will only deepen the cultural divides and fan the flames of an already dangerous culture war around this issue. Marriage is sacred, which is why it may be a great idea to legally open the institution to couples of the same sex. Although as a rabbi I do not officiate at same sex unions, I appreciate that “sacred” is not the same as religious or theological. If it were, then I would argue that government has no business regulating it in any direction, and different religious traditions and denominations do whatever they think best in terms of limiting those who can marry and those who can not. But sacredness is bigger than any one faith or interpretation; it denotes something of utmost importance which is treated with reverence by those who appreciate it. So even if my understanding of my tradition precludes such marriages, and I appreciate the consternation that the California Supreme Court’s ruling will cause many Americans, I can not pretend that their ruling will not bring many others precisely the kind of joy, purpose, and love that is experienced in the best heterosexual marriages. In fact, one could argue that the most aggressively pro-family position one could take would include being pro-gay marriage. If by being pro-family we mean to promote monogamous, loving, stable relationships, perhaps we should encourage those structures – such as marriage, for all people regardless of the sexual component of their lives. We may reserve the right to disagree about the choice (yes, I know that’s complicated) people make about those with whom they sleep, while applauding their decision to do so within the context of a marriage. Many religious traditions also frown upon sexual abstinence, but we don’t see religious groups supporting a ban on celibate marriage, do we? And for those who will quickly claim that a gay marriage is simply an oxymoron, I remind us that the definition of marriage is and has long been a fluid one. For most of human history it was as clearly polygamous as many would now claim it is obviously heterosexual. The bottom line is that what has counted as a marriage has shifted with our understanding of everything from romance to economic necessity. And now that, in the developed world at least, marriage need not be so much about the latter as the former, we should not be surprised by the fact that who counts as viable partners is being redefined. The court could have done much to shore up the rights of gay couples’ access to all those rights (and obligations) which come with married status in California, without taking this legally unjustified step. And doing so, would have set the stage for voters appreciating that it might actually be time to call such relationships a marriage (if it walks like a duck…). Instead, they have activated the most polarizing forces on both sides of this issue in ways that will do little to bring citizens together in a coherent way that reflects the sensitivity of both sides – the one to its understanding of religious and cultural tradition and the other to the present needs of real people trying to live as full and equal members of society. Since the court has not done that, it will be up to each of us to discover how best to participate in this ongoing national debate in a way that draws wisdom from each side and imagines that the long term success which we seek is not the victory of one policy over another. What we need is the fullest inclusion of the widest range of views and practices possible, while respecting our right to disagree about the correctness of any one of those particular policies and its implementation. |
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| May- August 2008 |
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| Arizona Daily Star 3/7/08 |
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Brad & Irwin in the Arizona Daily Star 3/7/08 |