Nearing the Mountaintop - We Made A Difference

Forty-six years ago this weekend, June 28, 1969 in Greenwich Village at the Stonewall Inn, police raided a gay nightclub in an attempt to arrest its patrons because being gay was illegal in New York City. Being gay was illegal. Riots ensued and, in their aftermath, the LGBT rights movement was born.

In light of the situation in America five decades ago, today’s Supreme Court decision arguing that gay and lesbian individuals’ rights are ensured by the 14^th Amendment, the equal protection clause, including the right to marry whomever they choose, could be seen as miraculous.

The Executive Director of the Central Conference of American Rabbis CCAR said:

As Jews, we believe we are all formed in God’s image. For many years, Reform Judaism rabbis have called for equal rights for all members of our communities, and we see today’s Supreme Court decision on marriage equality as a huge moral victory for the United States.

The Reform movement has been a strong advocate. Last March, the CCAR marked the 25^th anniversary of a 1990 resolution calling for the ordination of openly gay and lesbian rabbis, and installed its first openly gay president, Rabbi Denise Eger. I personally have performed a number of same-sex marriage ceremonies and spoke on several occasions at the Iowa Capitol about it. 

The majority opinion, written by Justice Kennedy is not a simple legal document. It is beautiful. For example, it states the following about the institution of marriage:

The annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations. The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together.

Beautiful! Yet, the stories of the three couples cited by Justice Kennedy in the opinion are heart wrenching:

1. 1.     A married couple wherein one spouse died from ALS, but because the state in which they resided didn’t recognize same-sex marriage, it refused to list the surviving spouse on the death certificate. Imagine not being listed as the spouse of your beloved because the state decided you weren’t allowed to marry.
2. 2.     A married couple with children, wherein because the state would not recognize the couple’s same-sex marriage, neither would it recognize both parents as the legal guardians of their adopted children leaving not only the couple, but the children as well, at risk should anything happen to one of them.
3. 3.     A couple including a soldier who served with the Tennessee National Guard in Afghanistan, whom when he returned home found that he was considered unmarried.

Justice Kennedy noted:

Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate… For much of the 20th century, moreover, homosexuality was treated as an illness…

Change was slow to come. It wasn’t until 1990 that even the highly progressive Reform Jewish movement was willing to ordain openly gay and lesbian rabbis and congregations were not exactly banging down the door to hire them when it did.

Justice Kennedy explained that times and our understanding of our world changes, something at the basis of Reform Judaism, discussed 130 years ago in the 1885 Pittsburgh Platform. The Justice wrote:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed…

It is noteworthy that rather than speak to a definition of civil marriage, Justice Kennedy spoke of what marriage should be. He stated:

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation… Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

While, in the opinion there are many paragraphs about legal benefits based in marriage and problems caused by exclusion from it, how beautiful is the statement, that marriage “offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other?”

I’m personally not sure I would have needed any more than that statement alone to justify what the Supreme Court of the United States did today. Yet, the concluding paragraph offered by Justice Kennedy is worthy of sermon and will itself be long remembered and oft quoted.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

And so 46 years after the Stonewall Riot in Greenwich Village when simply being gay was cause to be arrested, today it is legal for two gay men to be married there and their marriage will be recognized everywhere in America.

I often urge us to action as I did last week. I point out that we can make a difference even if what our own actions contribute is but a drop of water. Many drops, as was all too clear this week here in Des Moines, create a river and sometimes a very flooded one. What we can clearly say, after this Supreme Court decision, is that our drops of water, all of our advocacy through the years, created that river. 

We made a difference.

I stand before you, thinking of my own family members, who were never able to publicly acknowledge that they were gay or lesbian.

I stand before you, thinking of those in our congregation and in our community who have struggled to have their freedom and rights recognized, often suffering persecution and discrimination because of their views.

I stand before you, having spoken often about Antisemitism and the Holocaust, remembering pink triangles and getting choked up about it. This has been a long and painful struggle.

I stand before you, knowing the elation of nearing the mountaintop, having labored so hard and long on the climb. What a feeling!

We are here on a day when these words ring more truthful, “We the people who hold this truth to be self-evident, that we all are created equal.”

Today, my friends, we live in a nation beginning to live up to the lofty promise made by its first President to a little community of Jews in Rhode Island 225 years ago. In the words of President George Washington to the Hebrew Congregation in New Port Rhode Island and quoting the words of that congregation’s leader, Moses Seixas:

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy, a policy worthy of imitation.

All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of the inherent natural rights. For happily the government of the United States, which "gives to bigotry no sanction, to persecution no assistance,” requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support…

May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other inhabitants, while everyone shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.

This is truly a momentous day.

And so, how can I conclude this sermon with anything other than Shecheheyanu, thanking God for bringing us to this long sought after day?

Blessed are you, Adonai our God, ruler of the universe, for sustaining us in life, strengthening us, and enabling us to reach the day!

Jubilees and Separation of Church and State

Jubilees and Separation of Church and State

May 9, 2014

Rabbi David Kaufman

This week’s Torah portion, Behar, is almost ideally suited to the Supreme Court’s decision this week concerning prayer at City Council meetings in Greece, New York. I do not say this simply because Leviticus Chapter 25 contains the words:

You shall observe My laws and faithfully keep My rules, that you may live upon the land in security.

These words, if applied to adherence to the US Constitution and Bill of Rights instead of religious doctrine, are the essential mission of the United States Supreme Court. No, instead I refer to the primary topic of this Torah portion, the Jubilee Year and what the Jubilee Year was all about. First, however, let me discuss the Supreme Court decision and its implications and then I will connect it to Jubilees.

Over the years, I have been and continue to become involved in advocacy for the separation of church and state. Reform Jews are particularly strong in their advocacy in that direction and many have expressed concerns about the recent US Supreme Court decision regarding prayers offered at city council meetings in Greece, New York. Such prayers have regularly involved the use of language specific to Christianity and often clearly appear to urge listeners to adhere to Christian beliefs. In fact, one would have to go out of his or her way to deny that Christianity is in fact the established religion of Greece, New York because all such prayers are given by Christians.

As I understand it, a solution was proposed in which it was argued that prayers could be offered as long as they did not advocate for a specific religion or that clergy of other faiths could be brought into Greece from other locales in order to provide diversity. The city challenged this argument which had been upheld by a lower court as a means to counter the de facto establishment of religion and the case went to the Supreme Court which decided in favor of Greece, NY, sending shock waves through the Separation of Church and State advocacy community.

In recent years, the discussion of Separation of Church and State has primarily focused on removing religious influence on state based functions. Essentially, such efforts have promoted the concept of a secular government, a government devoid of religious based action and bias. "Freedom from Religion" has been at the basis of this movement which argues that the basis of the anti-Establishment clause of the US Constitution mandates that view.

It would make sense based on this understanding to ban all official prayers in the context of governmental activities such as city council meetings or proceedings of state or federal legislatures for example. One must question whether or not prayer can ever be devoid of advocacy for a particular kind of faith if not for a particular faith. To argue that generic theistic prayers are acceptable but prayers that are specifically Christian are not would certainly raise concern about the violation of the free exercise clause at a minimum and potentially also the right of Free Speech.

The First Amendment reads:

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. 

Politically, Progressives tend to stress the importance of the anti-Establishment clause, whereas Conservatives tend to stress the importance of the Free Exercise clause. Our Supreme Court currently leans 5-4 Conservative and that almost by itself explains the decision handed down this week, though I will explain in more detail. There are many cases where the two clauses conflict and the case of Greece, New York is certainly one of them.

To over simplify the situation, what happens in Greece, New York regularly appears to violate the establishment clause with regular clearly Christian prayers being offered, while not violating the free exercise clause because every minister chooses his or her own wording for the prayer offered. Whereas the solution proposed by those opposing the City Council's practice would appear to adhere to the anti-establishment directive, preventing a situation in which only Christianity is represented or would violate the free exercise clause by mandating the absence of faith specific language.

In this specific case, the practice of offering a prayer at all was never questioned. The Greece, New York case did not address whether or not such prayers should ever take place, the question before the court was based on the proposed solution and seems to have been about how one may pray rather than being about whether or not one may pray in that context.

To put this general argument into the context of Separation of Church and State specifically, two concerns arise:

1.                 Should there be prayer at state functions? This action clearly violates "separation", but does not necessarily violate "anti-establishment," unless no diversity is present in which case it would appear to do so.

2.                 Should there be restrictions imposed on the religious content of prayers offered? Doing so would appear to violate the Free Exercise clause.

Here's a direct quote from Justice Kennedy's opinion in the Greece, NY case:

To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and sensors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.

This is in accord with the Free Exercise clause, i.e. keeping state out of religion. Telling a minister that he cannot represent his tradition would in fact be state interference in religion and, I would add, which Kennedy does not, in the context of both mandating prayers and requiring basic God language, could functionally in so doing establish Deism as the state religion which would be a violation of the anti-Establishment clause as well.

As I see it, the question for advocates of Separation of Church and State is truly focused on whether or not such prayers should take place at all with the clear understanding that the context of such prayers being offered overwhelmingly or even exclusively by Christian clergy will necessarily promote the establishment of Christianity as the religion of the government.

The fact that it is not within the court's purview to require the council to bring residents of other cities to offer prayers so as to provide diversity and avoid de facto establishment of Christianity as the faith of the city and that the court rightly defends the free exercise of religion does not excuse the fact that without diversity, the existence of prayers of similar nature from a single faith establishes that faith as the government's religion. In other words, the court cannot demand diversity or determine the content of prayers, but neither can it allow the establishment of a government backed religion which is the case in Greece, New York.

This case was about how prayers were offered. It was a Free Exercise case, even though many observers put it in the context of Establishment. The next case will argue that without accommodation for diversity, the allowance for prayer in this type of context is de facto establishment. My belief as both an advocate for the Separation of Church and State and for the Free Exercise of religion, is that in order to follow the US Constitution's directive, a city council will have to either provide diversity, something that the courts cannot and honestly should not mandate that it do, or not hold such prayers at all as such prayers offered without religious diversity necessarily results in establishment, something that the court could in fact demand based upon the anti-Establishment clause.

So how does this all connect to the Jubliee Year? The Jubilee Year was in theory a time of restoration. Land that had been sold would be returned to its original owner, debts would be forgiven, slaves simply declared free. The text tells us, “The land must not be sold beyond reclaim, for the land is Mine; you are but strangers resident with Me,” and “For it is to Me that the Israelites are servants; they are My servants, whom I freed from the land of Egypt.”

The Jubilee Year is about the understanding that things change over the years, that what should be, often is not. It is unquestionably true that it has become traditional for the primary prohibition of the 1^st Amendment to the Constitution to be given lip service while being egregiously violated. There is no doubt that it has been the custom in many places in America for Christian prayers, regularly with a limited range of types of Christianity represented, to be offered at events and meetings held by institutions which in theory should be subject to the both the liberties and their restrictions enunciated in the US Constitution and Bill of Rights.

The argument that custom and tradition makes law is certainly one found within the Jewish tradition. The rabbis of old treated established customs as if they were dictated by Moses at Sinai. But that is precisely where Jubilees comes into play.

The Jubilee Year is about warning us that what should be is not what is, that what has developed over the decades is not necessarily the way things should be, that customs that have developed over time, particularly in regard to the treatment of those with less power by those with more power, should not be allowed to violate the laws upon which they were based.

Sabbatical years, the seventh year, and the Jubilee year, the 50^th year, may have been part of adjusting the calendar to bring the 364 day solar calendar into line with the reality of the cycling of days and seasons. There is no historical evidence that the Israelites ever put the rules of the Jubilee year into practice, e.g. that slaves went free or that land was returned. We have no evidence of that.

What we do know is that the idea that original intent matters in our tradition and that the Torah, unlike later rabbinical tradition, maintained the concept that customs that have developed over time should not be allowed to defeat or obfuscate the original intent of the laws upon which they were based. How much more directly could a Torah portion be in regard to this week’s Torah portion in which Justice Kennedy, offering the majority opinion, quoted an earlier case, Marsh vs. Chambers saying, “the Establishment Clause must be interpreted ‘by references to historical practices and understandings’.” This is, of course, similar to the fact that the concept of “people” in the Constitution not all that long ago did not necessarily include those who by many were deemed less than people, slaves.

No, it is not reasonable to argue that “historical practices and understandings” or customs and traditions have a veto.

All this said, if you wonder whether or not the framers of the US Constitution understood the meaning of the Jubilee year or that it had importance to them, this much is beyond dispute, the words of Leviticus 25:10, from this very Torah portion, are etched on the Liberty Bell:

Proclaim liberty throughout the land unto all the inhabitants thereof.

The words that immediately follow them, “It shall be a Jubilee for you.”

Shabbat Shalom.

Marriage Equality and the Journey Ahead

This week, the Supreme Court ruled in favor of those advocating marriage equality twice, by ruling that the Defense of Marriage Act or “DOMA” was unconstitutional and by not choosing to overturn the 9^th Circuit Court’s ruling that Prop 8 in California was un-Constitutional.

While I certainly appreciate these decisions, I have found my joy tempered for a number of reasons. First, it appears that the primary reason that DOMA was ruled un-Constitutional was that the court believed that the Federal government overstepped its bounds and took action on something reserved for the states.

 The court held that DOMA "because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage." DOMA’s "demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law," the majority ruled. "This raises a most serious question under the Constitution’s Fifth Amendment." Huffpost

In other words, while those marriages performed in Iowa will now be recognized by the Federal government, there is no mandate that other states must allow or recognize same sex marriages.

As for the refusal of the Supreme Court to rule on Proposition 8 and to overturn the 9^th Circuit Court’s ruling, Chief Justice Roberts, writing for the majority, stated that

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” Huffpost

It is important to note that this 5-4 ruling was not the traditional 5-4 split between Conservatives and Progressives, but rather included a mix of both with Roberts and Scalia joining Breyer, Kagan, and Ginsburg in the majority. The fact that the court did not hear the appeal limited the impact of the case to California alone.

The court did not declare all of the Defense of Marriage Act un-Constitutional, nor did it offer a ruling on Prop 8, potentially expanding the decision so that it would prevent other states from enacting similar legislation. There is a long way still to go in the fight for marriage equality.

On Wednesday, the Reform Movement issued a statement that I would like to share with you tonight:

Today’s Supreme Court ruling on marriage equality is a significant victory for the protection of Americans’ civil rights. No longer will lesbian and gay couples remain invisible to the federal government; no longer should there be doubt about the legal legitimacy of these partnerships.

The Defense of Marriage Act (DOMA), which we vigorously opposed when it was first considered, has been an offensive and discriminatory measure since its passage in 1996. Since then millions have been denied fundamental rights because of the impact of this ill-advised law. Though that law still stands, today’s ruling in Windsor v. United States promises to lessen some of its most damaging effects. By striking down Article Three of DOMA – a section of the law that the Obama Administration stopped defending several years ago – the Court has enabled legally married same-sex couples to receive the same federal benefits, rights and responsibilities as married heterosexual couples.

Sadly, too many couples across America are still denied the fundamental right to marry. The Court’s ruling in Hollingsworth v. Perry effectively expands that right to tens of millions more Americans. The Court missed an opportunity to take a stronger stand for marriage equality today, yet it is a step toward greater civil rights for millions of Americans.

There is no more central tenet to our faith than the notion that all human beings are created in the image of the Divine, and, as such, entitled to equal treatment and equal opportunity. Many faith traditions, including Reform Judaism, celebrate and sanctify same-sex marriages. Thanks to the Court’s decision, the federal government will now recognize these marriages as well, while still respecting the rights and views of those faith traditions that choose not to sanctify such marriages.

Inspired by our Movement’s longstanding commitment to civil rights, we joined in amicus briefs to the Court in both the Perry and Windsor cases. We look forward to the day when full civil marriage equality is the law throughout the country, reflecting our nation’s historic commitment to the civil rights of every individual. In the meantime, today’s decisions will inspire us to continue to seek justice for all.

While some have said Shecheheyanu, I don’t think we’ve arrived at that day yet. We certainly should not be saying, “Dayeinu.” This isn’t enough.

For the past two days, I have found myself smiling, sometimes with a tear in my eye, as I hear or read the stories of those loving couples who will find their lives improved because of these court decisions. But I have also found myself sickened by some of the commentary that I have heard and seen. I know beyond any doubt that those who wish to discriminate and those who hate will ratchet up their efforts in the months ahead. The leading opponents to same sex marriage are not all right wing Christian Fundamentalists with whom we have rarely worked on social issues. Instead we find the Catholic Church, among our closest of friends in many social efforts, taking the lead.

Cardinal Timothy Dolan, head of the United States Conference of Catholic Bishops (USCCB), referred to Wednesday’s decisions as “a tragic day for marriage and our nation.” Blasting the Supreme Court for dealing “a profound injustice to the American people,” Dolan flatly asserted, “The Court got it wrong. The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so. The preservation of liberty and justice requires that all laws, federal and state, respect the truth, including the truth about marriage.”

Pat Archbold at National Catholic Register wrote:

With the universal legal recognition of same-sex marriage a fait accompli, the next fight will on the Church doorstep. The next battle will be to force Churches, most particularly the Catholic Church, to recognize and conduct same-sex marriage. The refusal to do so will result in a series of escalating legal and financial ramifications.

Eventually, because of its refusal to recognize immoral unions as marriage, the state will refuse to recognize Church marriages. As a result, more and more people will bypass Church marriage altogether, further marginalizing faith in this country. This effort is and has always been a war against religion and in particular a war against the Catholic Church. Right now, it is a war we are losing and after today, perhaps it is fair to say that we lost.

Breitbart

Those of us who believe in a strong separation of Church and State and in the Freedom of Religion will stand up and defend the rights of others to not believe what we do and against all who would press their religious beliefs or anti-religious beliefs on religious organizations. In fact, in our minds, that is exactly what the Supreme Court has done in removing these restrictions upon those of us who support Marriage Equality, allowing those who support marriage equality to do so without infringement. The court did not issue any mandate demanding that religious groups that do not support same sex marriage must now do so. 

We may well be headed toward a full separation of the performance of religious based marriages and legal state and federally recognized unions. In fact, civil unions based upon secular laws and applying to property and benefits are most likely ahead. In most Western nations, people wishing to get married go to the state to get a civil union and then, if they choose, have a religious marriage ceremony.

Meanwhile, the Catholic Church is far from alone in its condemnation of the decisions.

The Traditional Values Coalition said that civilization eroded today. And former Arkansas Governor Mike Huckabee, now a Fox News personality, declared that Jesus wept. Breitbart

I came across several responses to Huckabee saying that “Jesus’ had tears of joy.”

What I find most troubling in dealing with all of this is that while we struggle to find reasonable discourse on many issues and we strive to hold discussions with a sense of consideration and respect for the views of the other and for others as such, in this case all too often responses have been not only disrespectful but disgusting and hateful. Not only has the word “sin” been thrown around indiscriminately over the past couple of days, something which at least could be discussed in a religious context, but advocates for equality such as myself were accused of doing Satan’s work, promoting evil, destroying society, destroying families, destroying America. In the face of that, how can I truly rejoice?

I’m happier than I would have otherwise been, but I’m not ready to declare victory yet. The other side recites the words of John Paul Jones, “I have not yet begun to fight.” We should not yet begin to rejoice.

I find it all too appropriate that this week’s Torah portion is Pinchas. It is one of my least favorites. In it Pinchas and the people are said to have been blessed by God because Pinchas was righteous. What did Pinchas do to earn that blessing? He killed an Israelite and a Midianite woman because he believed their relationship to be an abomination.

We do not believe our texts to be the word of God and we challenge what they teach us. Others do not. We have a long way to go in the struggle for marriage equality and even a longer way to go in the struggle for respect and care for all of those created in the image of God.

We are not yet nearly as Moses standing upon Mount Nebo overlooking the Promised Land. Instead, we are more like the Israelites leaving Egypt before ever reaching the Reed Sea: granted freedom but pursued by those who would take it away and with a long difficult journey ahead.