Back at the beginning of the winter, peoples’ profile pictures on
Facebook began showing up with a horizontal rainbow of coloured stripes superimposed
over the picture. The first time I saw
it, I did a double take, but a moment later I realized the point. It was a celebration of the US Supreme Court’s
decision, announced on 26 June of this year.
Things that happen in the USA have a way of reverberating across the
world, reflecting the country’s size and overall wealth. Not to mention the power of her entertainment
industry. That’s why the rainbow wash
instantly began appearing over the profile pictures of people who had no
obvious connection to the USA. Because
the quest for Marriage Equality, as it’s called, has been front-and-centre for
a number of years in the USA, it has become a top hot-button issue in the rest
of the Western World including here. The
Supreme Court’s decision in Obergefell v Hodges serves as an inspiration in
other countries. Including here in Australia
where the number of rallies supporting Marriage Equality has increased. The ruling coalition has been under a lot of
pressure to pass a law changing the definition of marriage to include
individuals of the same sex. Prime
Minister Abbott has decided to put it to the electorate in a plebiscite in the
near future.
The debate on the
subject has been interesting, to say the least.
The question is framed as the Right to Marry the One Whom One
Loves. The premise is that gay and
lesbian people are born that way. This may
well be so, although proof still eludes us.
But since Everybody Knows it’s so, then limiting marriage to two people
of opposite sexes, in effect creates an inequality – making whole classes of
people unable to marry. So, out of a
sense of fairness, there has been a groundswell of straight people, advocating
for the rights of homosexual people to marry.
And celebrating the US Supreme Court’s landmark decision.
The decision’s
detractors often appear quite stodgy.
Since we’re talking about an equality issue, how can someone not want
equality for all? It is often pointed
out that there are plenty of other legal limitations as to who one can
marry. For example, one cannot marry one’s
sibling. Or one’s parent. Or more than one. A valid argument against the
redefining of marriage to include two people of the same sex, often cautions
that the action will ultimately lead to the aforementioned becoming legal. Those who have been advocating for same-sex
marriage tend to dismiss this argument.
But I think it’s valid. If the
basis of the right of two people of the same sex to marry is that the state
cannot tell someone who they can’t love, then that opens the door to all kinds
of changes. People love their
animals. Why limit marriage to another homo
sapiens?
The marriage argument
in our time, focuses on the right to marry, and asserts that an
individual has the right to choose one’s marriage partner. But the Torah, in this week’s reading, frames
the question differently. It tells us
whom one must marry. Three
examples are given, each of which is very problematic to contemporary ears
because they are very far outside our sensibilities. But even if the cases of required
marriage are no longer operative, from them we can learn important lessons
regarding Hashem’s Mercy and Concern for our well-being.
Our reading, Parashat
Ki Tetzei, opens with the case of the women who is a captive in war. We know that rampaging armies often rape
their way across enemy country. From the
Torah we learn that this was a reality even in the ancient world. What causes it? Probably a combination of factors. But it is clearly odious. And the antidote? If an Israelite soldier wishes to ‘have his
way’ with a captive girl, then he must marry her. The man’s responsibilities toward the enemy woman
are the same as if she were of his own people.
If he ultimately decides that he doesn’t want to remain married, he can
divorce her under the same conditions that a man may divorce any wife. He cannot sell her as a slave but must free
her.
It’s easy to dismiss
this whole scenario and ask why the Torah doesn’t simply forbid the Israelite
soldier from touching an enemy woman. I
can’t answer the question. But I can see
how, if the victorious soldier faces the requirement of taking a captive enemy
woman as a wife in every respect, this would serve as a strong constraint to his
drive to possess such a woman. And it
would serve as a strong protection for the woman thus taken in marriage.
The second case
involves the Israelite woman taken by force. There are certain tests of the credibility of
the woman’s claim that she was unwilling.
If by these tests the woman was ‘shown’ to have contributed to the act
through her behavior, then the man must marry her. And then, he can never divorce her.
This, too is easy to
dismiss because it goes against so many principles that are seldom disputed
today. For example, that of ‘blaming the
victim.’ And it would seem that the
removal of the option of divorce down the line, is imposing a liability on the woman,
not the man. So if a woman gets
raped by a man after inadvertently wandering into his field, she’s then
sentenced to be married to him for life?
And of course, this sounds harsh and sexist as it should, to our
ears.
But look at it
another way. If a man takes a woman under
circumstances where there is some sense that she walked into it with eyes open,
but under circumstances which defied social conventions, then his
responsibility to the woman is for life. There’s no out for him. In this way, we can see this law, not as a
liability placed against a woman, but as a protection for her.
The third case. If a man dies before his wife could have a
child, the man’s brother is obligated to marry the widow to produce a child in
his dead brother’s name. If he does not
want to perform this duty, he must perform a ritual calculated to show the
entire community that he is a slacker. It
is easy to dismiss this law as well. But
it is important to see this a protection for the women – not an onus. In order to see this, we must take the Torah
in the context of its time.
My point in
highlighting these three practices is not to advocate that we return to them. I don’t hear anybody, not the most traditional,
advocating for the forced marriage of war captives, rape victims, or childless
widows. I only wish to point to Hashem’s
meta-message that marriage, and who should marry whom, is a matter of responsibility…as
well as choice. There are those whom one
is allowed to marry, and that list appears elsewhere, in Parashat
Acharei Mot, in the 18th chapter of Leviticus. And then there are those whom one is compelled
to marry, based on circumstance or, sometimes based on one’s behaviour.
In our age, we tend
to see marriage as a right but not a responsibility. Gay and lesbian people should not be denied
the right to marry based on their sexual orientation. By asserting their right to marry, they
avail themselves of certain legal advantages that the state grants couples in
order to encourage marriage. But why
should the state have anything at all to do with marriage? Because marriage adds to the stability of
families. It protects women and,
especially, children. That the state
recognises the status of a bona fide or, as it is called in the USA, a common
law husband or wife, tells of this. Marriage between a man and a woman who create a
home and have children is valid, even without a licence to prove it. The state uses the issuing of marriage
licences, and the recognition of responsibilities even in the absence of a
licence, as a tool for creating domestic security.
For the record, I’m
not an advocate of same-sex marriage. But
that’s not because I don’t want homosexual people to be able to enjoy a life in
the company of the one they’ve chosen to love.
It’s because a marriage licence is not intended to be an expression of
love. Rather, it’s an instrument of
responsibility. Why should the state
care who loves whom? It doesn’t. But the state does have a responsibility to
protect the most vulnerable in society. And the whole debate over same-sex marriage has,
unfortunately, turned us away from that principle. The Torah propounds this principle. Today we tend to ignore it. Shabbat shalom.
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