PARASHAT MISHPATIM/SHEKALIM

Presented by Rabbi Philip Pohl

There are at least two reasons why my sermon topic today will be the issue of same sex marriage. First of all, the issue is obviously very much in the news and receiving a great deal of attention.

Literally thousands of gay individuals have joined together in matrimony, civil matrimony, if not holy matrimony, in the city of San Francisco over the last several days.

Marriage licenses have been granted to gay couples in San Francisco, despite a law that will prohibit this type of union.

Second, the Torah portion Mishpatim and the extra portion of Shekalim have something to contribute to the discussion of same sex marriage even if the connecting thread is tenuous.

Let’s start with Parashat Mishpatim. The term Mishpatim literally means laws. Actually there are many terms in Hebrew for “law.” This demonstrates how important the concept of law is to the Jewish religion. Just as we have learned that there are more than 70 terms for snow used by Eskimos, since they live in it much more than we do, so there are many terms for law in Judaism to show its importance. Different nuances can be learned from each of those different terms.

Now in Parashat Mishpatim, and in the Torah as a whole, there is no distinction between religious and civil law. All civil law is defacto religious by nature.

From the perspective of the Torah, there is no separation of church and state. Religious law applies to all rulers and leaders, whether they are priests-cohaneem, or as stated clearly in the Book of Deuteronomy, whether the ruler is a king. Conversely, all matters relating to rules of leadership by the priest, or by the king, are also religious in nature.

The concept separating church and state is non-existent in the original context for the laws we find in Parashat Mishpatim.

Let me share with you something I’m not sure I’ve ever told you before. The State of Maryland recognizes a rabbi as a legitimate officiant for its civil marriage requirements. I am permitted to sign the civil license a couple needs to obtain before officiating at a legal marriage in the State of Maryland.

The state recognizes that my role as a religious leader will also meet its needs for a civil Justice of the Peace to perform a marriage. It does not, of course, recognize a similar status for me when it comes to officiating at a Jewish divorce. A Jewish divorce – the delivery of a get is viewed by the state as only a religious ceremony. I have no status as an officiant in a civil divorce procedure. But in marriage, I do. I am the equivalent of the civil, “Justice of the Peace.”

So technically and legally, in the state of Maryland, I am permitted to officiate at a marriage of any man and woman. But interestingly, the Rabbinical Assembly, the organization of Conservative rabbis of which I am a member, will not permit me to officiate at such a wedding.

The RA prohibits this for at least two reasons –

one is the fear that rabbis might then be more tempted to officiate at civil interfaith marriages, namely the marriage between a Jew and a non-Jew while not actually performing a Jewish wedding ceremony. Having a rabbi officiate at even a secular civil marriage ceremony may lend some imprimatur of Judaism to the ceremony, which the Rabbinical Assembly does not want to encourage.

Secondly, the RA want rabbis to be seen primarily, if not exclusively, as religious ceremony officiants, and not as a substitute for a civil servant. The Rabbinical Assembly must feel that if rabbis were to officiate at civil ceremonies it would undermine, and perhaps even demean, the role of rabbi as a religious leader.

I know about this firsthand. When my trusted, loyal and wonderful assistant Annette Bozinko’s older daughter Susan decided to get married, there was a request that perhaps I could officiate, or at least participate, in what was a civil ceremony. A Justice of the Peace married Susan and her husband Rob. Could I participate? Could I co-officiate at least, in this marriage between two non-Jewish people?

Well, I wasn’t sure, so I called the Rabbinical Assembly and spoke to the RA leadership. They told me, no! I wasn’t the first person to ask to participate in such a ceremony, so for the reasons I’ve explained, I was denied permission to officiate at the ceremony. The Executive Director of the RA, Rabbi Joel Meyers, told me that I could speak at the “kiddush,” or whatever kind of reception would be held, but to participate in the ceremony would be against Rabbinical Assembly policy. So I spoke at the kiddush!

Interesting, isn’t it, that we have a religious term in Hebrew – kiddush, the word for “holiness,” which refers to the food, drink and celebration that occurs after the actual ceremony takes place. That certainly indicates to what extent we, the Jewish people, have always seen our ceremonies – they are religious in nature from beginning to end, not civil.

All of this is important background material that helps to provide a framework for this presentation on the issue of same sex marriage. This distinction between civil and religious ceremonies, and which officiant represents what type of ceremony, is important when discussing the issue beyond the question of equal rights for homosexuals in marriage law.

This distinction between civil and religious ceremonies looms behind the debate as to whether an imprimatur of a relationship between homosexuals should be limited to what has been called “civil unions,” or whether it should be extended to the full institution of “marriage.”

What’s the difference between the two? On certain levels it’s complicated, but here’s how I understand it. Civil unions may be granted in a particular state and be considered to be a binding legal method of unifying a relationship between two homosexuals in that state. However, another state, which may not permit civil unions, would not necessarily then have to recognize that union.

That’s not the case with marriage. If you’re married in New York State, then your marriage is automatically federally guaranteed to be recognized as valid in every other state of the union. That’s why it’s possible to get married in one state and divorced, for example, in another, which may not be the case if you have a civil union.

In other words, civil union is limited to the state in which it takes place, while marriage has certain federal guarantees and protections.

As was pointed out very astutely by one of my post-Seminar students this past Wednesday night when we discussed this issue, referring to a relationship as a civil union rather than marriage is important because marriage, to almost everyone, has a religious connotation. The term “civil union” does not.

When most people think about the institution of marriage, they think most often of “holy matrimony.” When most people think about an institution like “civil union,” no one will use the term, “holy civil union.”

So, establishing an entity which legally joins two males or two females together in a committed sanctioned relationship, and calling that relationship a civil union rather than a marriage, is somewhat similar to the tendency in this country to separate church and state.

While marriage can take place in a civil ceremony, as mentioned earlier, how many people do you know had a civil ceremony, and not a religious ceremony, for their wedding? And if they did, I’ll bet that most of those people later on, like Sid and Ida Rosenheim, had a religious ceremony anyway, because they really didn’t feel married in every sense until there was a religious hechsher to the marriage.

And so, we find that civil unions can be a means of providing a legal imprimatur to a gay couple wishing to formalize their relationship without the law declaring they have sanctified their relationship. It is a legal way of saying the relationship is valid and binding, without being kiddushin – holiness, without a sense of religiously imbued holiness.

Many people are reticent to do just that because of the Bible’s stance against male homosexuality and the Judeo-Christian general stance against homosexuality of all types. It is stated very clearly in the Torah that a male homosexual act is an abomination. Interestingly, the Torah does not comment on lesbian sexual acts. That occurs later in the Talmudic period.

In either case, it is very clearly against halacha to engage in homosexual activity and it would be, I think, clearly against halacha to perform a same-sex wedding of a religious nature.

Permitting same-sex marriages within the Conservative Movement would be a bold and daring move. It may even be the correct move sociologically and culturally, in egalitarianism terms.

But what is not debatable is that if homosexual marriage, same-sex marriage, is permitted, then the Conservative Movement would be taking a major leap outside the boundary of halacha, and not only as defined by the Orthodox Movement. We’re already outside the boundaries of halacha by that definition. We would be considered outside the boundary of halacha by most of the adherents of Conservative Judaism and every other form of Judaism that has any understanding of halacha whatsoever.

I’m not saying that it would be the wrong thing to do. I’m saying that it would not be a halachic thing to do.

Now, for a long time, I have been convinced that the Conservative Movement is not really a halachic movement. We are indeed a movement of tradition and change, but I find it very difficult after so many years of serving as a congregational rabbi, a rabbi among the people who live within a Jewish community, to really see how we really are consistently able to identify ourselves as a movement committed and governed by halacha.

It is certainly much easier for my teachers who sit in the ivory tower of the seminary to live, preach and teach the Conservative Movement as a halachic movement. But most of them have not spent any extended time trying to work with the Conservative Jewish community. That’s a whole different story when it comes to halacha.

Therefore, I would like to state that at this time, as this debate on same-sex marriages continues, I’m in favor of same-sex marriages in the Reform Movement which clearly and unabashedly stands as a movement outside the boundary of halacha. Obviously then I am in favor of same-sex civil marriages as well. As a secular civil matter there should be no objection to two homosexuals marrying each other.

Just as I recommend interfaith couples to seek out rabbis in the Reform Movement or elsewhere who will officiate at interfaith marriages, so I would recommend homosexual couples do the same.

I also understand and am willing to support the position of the Conservative Movement not to officiate at same-sex marriages. I understand that this will be a watershed issue when it comes to our Movement and our understanding of how halacha works within our movement.

I cannot, in all good faith, see myself telling a man and a woman who are of a different religion that I will not officiate at their wedding, but I might officiate at a wedding between two men or two women. After all, the Bible is filled with men and women of different faiths who joined together in whatever institution of marriage was available to them at the time. The Bible doesn’t tell any stories, as far as I know, of two men or two women getting married to one another.

A few concluding points - first of all, I am in favor of trying to create a ceremony which recognizes two Jewish men or two Jewish women who wish to join together in, if not marriage, then something religiously equivalent to a civil union.

I am wise enough to understand that once marriage ceremonies, or even just civil unions become as prevalent around here as they have been in San Francisco the last few days, then I and other rabbis will be approached to officiate at some sort of ceremony, if not a marriage ceremony, for gay couples.

If they feel strongly connected to their religion, as many of them do, they will also want to have some sort of religious component to the ceremony, it not an outright Jewish marriage. I am willing to discuss and investigate what type of ceremony providing them with a blessing from God might be acceptable. At the same time I prefer not to use the centuries-old ceremonies and customs that unify the relationship between a Jewish man and a woman in kiddushin – in holiness. I wish to be sensitive to the need for some recognition of holiness in the lives of gay couple – it just has to be different in quality and in content than the rites of holiness we make available to Jewish heterosexual couples.

Just as an aside, but an important aside, as I told you earlier, I spoke to my post-Seminar students about this topic over the last couple of weeks, and I asked my daughters as well. What do they think about same sex marriages?

And their answer is, not unexpectedly, it’s not such a big deal. How does it hurt anybody else? It is something they really expect should happen and will happen. And now it does happen.

Finally, the second Torah reading for today, is called Shekalim. You’ve often heard me share the traditional explanation as to why the amount contributed as a ransom for one’s soul when serving in the ancient Israelite military, and then later as upkeep for the temple, was a half shekel.

Commentators tell us the reason a half shekel was selected is because you need two halves to make a whole. A half is never complete without another half joining to it.

I don’t know what it’s like to be a homosexual in today’s society. I assume that most of you don’t, either. At least that’s what our population demographics might indicate.

But I think you join me in knowing what it’s like to sometimes feel half, and not whole. I think you understand that at different times in your life you need someone else to help complete your life, and to make special occasions in your life holy and certainly more fulfilled.

I know that basic human need is true

whether you are male or female,

whether you are young or old,

whether you are heterosexual or homosexual.

That is a need we all share.

The hidden, if not the explicit message from Parashat Shekalim, is that it’s a need we’re all entitled to fulfill.

Shabbat Shalom.