U.S. Gay Marriage Ruling Puts Orthodox Jews on Collision Course With American Law

In Supreme Court's landmark decision, majority shockingly made no mention of the constitutional right to free exercise of religion - no wonder that religious Christian and Orthodox Jewish groups are worried.

Seth Lipsky
Seth Lipsky
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 White House illuminated with rainbow colors after Supreme Court legalizes same-sex marriage. June 26, 2015
White House illuminated with rainbow colors after Supreme Court legalizes same-sex marriage. June 26, 2015Credit: AP
Seth Lipsky
Seth Lipsky

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 every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”

Those are the words with which George Washington, newly elected president of the United States, welcomed the Jews to America. I have been thinking about this sentence in the wake of the U.S. Supreme Court's ruling that the constitution grants same-sex couples the right to be married and prohibits states from declining to license or recognize such unions.

The fact is that however exhilarating the Supreme Court’s decision is to those who levied the long struggle for same-sex marriage, a note of fear is now detectable among America’s Orthodox Jews and religious Christians. For the first time since Washington’s letter of 1790, Orthodox Jews are on a collision course with American law, with consequences that could be serious indeed.

There are no doubt that there are those who see it otherwise. “Jewish groups hail Supreme Court’s legalization of gay marriage” is the headline of a JTA story with the big news Friday from Washington. But the hailing was being done by the American Jewish Committee, the Anti-Defamation League, and other liberal groups and religious streams, including the Reform and Reconstructionist movements.

No doubt they speak for millions who share the hope that same sex couples will be able to gain the dignity the Supreme Court said the Constitution owes them, via the right to marry. But the Orthodox Jewish community has a different view. This was voiced by, among others, the Orthodox Union and the Agudath Israel of America. The latter, in a statement Friday, warned that its members faced “moral opprobrium” and were in danger of “tangible negative consequences” if “they refuse to transgress their beliefs.”

To judge by recent events, they are understating the case. The whole campaign for same sex marriage, however high-minded its ideals and however real — and all too often violent — the injustices endured by same-sex couples, has been levied at the expense of religious Jews and Christians. The U.S. Supreme Court majority knows that full well. But it dodged the issue, with Justice Anthony Kennedy, author of the majority opinion, giving the fears of religious Americans less than a paragraph.

Kennedy emphasized that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” He noted that the First Amendment, part of the Constitution’s Bill of Rights, “ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

That was a reference to the free speech part of the First Amendment. But it was startling — shocking even — that the majority gave no mention at all of the Constitution’s second principle of religious protection, the right to the “free exercise” of religion. That is where the battle lines are being drawn by liberal and left-wing factions in America seeking to force religious individuals to embrace same-sex marriage.

Anti-gay T-shirt takes part in a protest against the gay pride parade in Jerusalem June 25, 2009.Credit: Reuters

In recent months, Americans have been reading about a Christian baker who has been the subject of an enforcement action in Colorado for declining to bake a cake for a same-sex wedding, a husband-and-wife clerical team that reportedly may have to close their for-profit wedding chapel because they won’t hold same-sex nuptials in it, and a New York family that is tangled in a legal proceeding for refusing to rent out their home for a same-sex wedding reception. A Catholic adoption agency that would not work with same-sex couples has been forced out of its charitable work.

“In all likelihood, many of these rear-guard actions against marriage equality will soon fall of their own weight,” Jeffrey Toobin, who covers the Constitution for the New Yorker, wrote after the Supreme Court spoke. “Like so many of their fellow-Americans, wedding photographers and the like will make their peace with the new rules that guarantee their neighbors an equal chance at happiness. (Besides, they need the business.)” Maybe, but I’m not so sure things will go as smoothly as he imagines in the Orthodox Jewish world.

“The issue here is not whether all human beings are created in the Divine Image, or whether they have inherent human dignity. Of course they are, of course they do,” the Agudah said in a statement after Obergefell vs. Hodges was handed down. But it went on to assert that “the truths of Torah are eternal, and stand as our beacon even in the face of shifting social mores.” At some point this is going to come to a head in a way that will test George Washington’s promise to the Jews to a degree that we haven’t yet seen.

Seth Lipsky, the founding editor of The Forward and a former foreign editor of The Wall Street Journal, is editor of The New York Sun.

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