This past week, the Conservative movement’s Committee on Jewish Law and Standards, the authoritative body that decides matters of Jewish practice for Conservative Jews, approved a responsum that lays out several options for same-sex “marriage” ceremonies. Each features a ring exchange and a series of wedding blessings. But none includes the key statement, harei aht mequdeshet li (Behold you are betrothed to me), that effects Jewish marriage. The reason for this omission is that the authors of these ceremonies do not view same-sex partnership as Jewish marriage, as they go on to explain in detail.
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As a Conservative Jew, I am pained that a movement that stands for tradition and change has chosen to endorse an ancient bias against gays and lesbians. Yes, we should celebrate the fact that in 1992 the movement issued a statement calling for significantly improved treatment of gays in synagogues, and even more important in 2006 decided to admit gay students to the movement’s rabbinical schools. And that very recently, Machon Schechter, the Masorti Rabbinical Seminary in Israel, decided to admit gay and lesbian students as candidates for rabbinical ordination. But although it has come a long way, the leadership of the Conservative movement in the U.S. still does not subscribe to equality before the law for all Jews.
This peculiar attitude of condemning but also condoning discrimination against gay men and women follows from the Committee’s 2006 decision to ordain gay rabbis. At that time, it voted to accept two responsa that denied gay men (and women) admission to rabbinical school and also two that affirmed it. It is standard procedure for this body to approve contradictory majority and minority positions.
Let’s set aside the two responsa that argued against gay ordination. If we turn to the two ostensibly pro-gay responsa, both prove to be problematic. One says that only if gay men do not engage in anal sex, which is forbidden by the Torah, will they be regarded as suitable candidates for the rabbinate. The other says that there is no halakhic way to approve of same-sex relations and hence one has to step outside of the halakhic system to reach the decision that gay men can serve as rabbis. (Little attention was paid to lesbians because Jewish law does not ban same-sex relations for women.)
Why do I find these two responsa disappointing and even morally offensive? Because both ignore a central tenet of Conservative Judaism, which is that when a law is found to be discriminatory, the system itself mandates change. If there is any message emerging from the pages of the Talmud, the subject I teach and the literature in which I am immersed on a daily basis, it is that codified law can be modified by rabbis if they offer a persuasive argument for doing so. For example, when the early rabbinic tradition showed itself to be patriarchal in that it denied women the right to inherit, later rabbis altered that rule and gave women a fair share of their father’s wealth. Take a look at the Babylonian Talmud, Ketubot 52b. However, the two advocates of gay ordination, struggling to accommodate ancient texts to evolving ethical sensibilities, overlooked this key principle of change and thereby undermined a core stance of the movement.
It is therefore no wonder that the Conservative movement is foundering today. Both Orthodoxy and Reform espouse clear principles. The former makes the Shulhan Arukh, the 16th-century code of Jewish law, its constitution, with very little change possible, and the latter makes the same code a guide but not a given, and then adds a strong focus on the biblical requirement to pursue social justice. Both streams effectively communicate these points of view to their adherents.
The Conservative movement, which is generally seen as occupying the middle ground between Orthodoxy and Reform, does not make its core principles widely known. I have been a Conservative Jew my entire life and for the last 35 years have been training future Conservative rabbis. I therefore know what message Conservative Judaism is supposed to broadcast, and it is that halakhah is binding and immutable, but when it strays from the path of ethical behavior, it must be brought back into line with it. This kind of modification is called change for the sake of repairing the world. Why would anyone choose to affiliate with a movement that lacks a clear moral stance, one that tolerates discrimination against gays at the same time that it argues for their full equality?
I look forward to the day when the Conservative movement will formulate and promulgate a fully egalitarian same-sex marriage ceremony. When it does, it will show the world that it is living up to its own honorable and excellent credo of tradition and change.
Dr. Judith Hauptman is the E. Billi Ivry Professor of Talmud and Rabbinic Culture at the Jewish Theological Seminary and the Rabbi and Founder of Ohel Ayalah, a free walk-in High Holiday service for young Jews.