Throughout the High Holidays, and, indeed, throughout the month of Elul that precedes the High Holidays, we seek to review and make amends -- to do teshuvah – for the wrongs we have committed in the previous year. However, the dramatic recitation of “Kol Nidre” – with which we opened our service --- is what we might call an exercise in “teshuvah advance planning.” In effect, we’re trying to make amends for the wrongs we haven’t yet committed. Kol Nidre acknowledges that we are imperfect --- and that our best intentions are often thwarted by circumstances beyond our control, or simply by our own moral failings:
And so we say:
All vows, bonds, devotions, promises, obligations, penalties and oaths, wherewith we have vowed, sworn, devoted and bound ourselves, from this Day of Atonement to the next Day of Atonement – may it come to us for good – all these we repent us of them. They shall be absolved, released, annulled, made void and of no effect; they shall not be binding nor shall they have any power. Our vows shall not be vows; our bonds shall not be bonds; and our oaths shall not be oaths.
The legal language of Kol Nidre technically refers only to personal vows that we may make to ourselves or to God in the coming year --- and asks that they be considered null and void --- so that we may not become sinners if we fail to follow through on them. Indeed, with regard to such verbal undertakings, there is a strong current within Jewish tradition that teaches that it’s better not to make vows at all:
כִּי-תִדֹּר נֶדֶר לַיהוָה אֱלֹהֶיךָ, לֹא תְאַחֵר לְשַׁלְּמוֹ: כִּי-דָרֹשׁ יִדְרְשֶׁנּוּ יְהוָה אֱלֹהֶיךָ מֵעִמָּךְ, וְהָיָה בְךָ חֵטְא. וְכִי תֶחְדַּל לִנְדֹּר--לֹא-יִהְיֶה בְךָ חֵטְא
says Deuteronomy 23: 22-23 --
“When you make a vow to the Eternal your God, do not put off fulfilling it, for the Eternal your God will require it of you, and you will have incurred guilt; whereas if you refrain from vowing, you incur no guilt.”
טוֹב אֲשֶׁר לֹא-תִדֹּר--מִשֶּׁתִּדּוֹר, וְלֹא תְשַׁלֵּם
teaches Ecclesiastes 5:4
“It is better not to vow at all than to vow and not fulfill.”
And in the Talmud, in Tractate Chullin, Rabbi Meir argues:
טוב מזה ומזה שאינו נודר כל עיקר
“Better than either of these (i.e., better than the person who makes a vow and fulfills it or than a person who makes a vow and fails to fulfill it), is one who doesn’t vow at all.” (Chullin 2a)
Still, notwithstanding all the caveats in Kol Nidre and in our tradition about making vows at all, we do all make vows and promises of one sort or another all the time, not just to ourselves and to God, but to other people. And one particular example of such making of vows comes very much to mind in this heated election season – the vows that two committed partners make to one another when they get married.
A valid argument can be made that government should have no interest whatsoever in whether two people decide to get married. And, call me a contrarian, but I don’t actually believe that there is any fundamental right for coupled individuals to enjoy tax benefits and streamlined property transfer and probate procedures compared to single individuals. However, as long as government does wish to make the policy choice of favoring couples over single people in these ways, I do feel very strongly that it shouldn’t discriminate between opposite-sex couples and same-sex couples in doing so.
As a society, we still have a long way to go in getting our laws to reflect the principle that discrimination on the basis of sexual orientation is unjust and unfair. In many parts of the world, gays and lesbians fear for their very lives due to legal regimes and social environments in which homosexuality is criminalized and demonized. And in the United States, it’s only about ten years since the United States Supreme Court invalidated state and federal laws that purported to make homosexual behavior a crime. And it’s only one year since the discriminatory “Don’t Ask Don’t Tell” regime in the U.S. military was ended.
Marriage equality is the next step in ensuring a just society. This has already been achieved in several states, including the State in which I was born, New York, and the state where I was living before coming to Duluth, the great State of Vermont. Vermont back in 2000 became the first State to enact Civil Unions, which gave same-sex couples the exact same rights under state law as opposite-sex couples in civil marriages, except for using the word “union” instead of the word “marriage.” Then in 2009, the Vermont State legislature abolished that separate but equal designation of “civil union” and legislated that the unions of both same-sex couples that were civilly recognized by the State as well as the unions of opposite-sex couples that were civilly recognized by the State would both be designated as “civil marriages.”
From personal experience, I can assure you that the sky did not fall in Vermont as a result --- nor did catastrophe ensue in other states and countries where there is civil marriage equality – jurisdictions that include our neighbors the State of Iowa to our south and all of Canada to our north.
I know that the wonderful organization “Minnesotans United for All Families” advises that in this fight we should steer clear of the language of equal rights and civil justice, and instead focus on the importance of love and the meaning of marriage. This is a well-intentioned and, I’m pretty certain, ultimately the most effective strategy in our current electoral contest.
However, for me personally, the principles of justice and equal treatment before the law are the values that most strongly resonate with me.
For me personally, I find it almost unbearable as a gay man to have to argue for my right to be treated equally under the law. And I’m angry at having to argue that the love and commitment that two same-sex partners can share is equal to the love and commitment that two opposite-sex partners can share. And I’m angry at having to argue that the nurturing that can be provided to children in a household headed by two dads or two moms is equal to that which can be provided by a mom and a dad.
It should be obvious to all that love is love. Commitment is commitment. Family comes in a variety of forms. And no religion should have the right to impose its particular understandings of gender roles on others who do not share those religious views.
I am proud that our Temple supports marriage equality. I am proud that my professional association of Reconstructionist rabbis supports marriage equality. And I am proud that the congregational arms of both the Reform and Reconstructionist movements support marriage equality.
However, the problem for me in talking about this subject in the context of a sermon is simply that I don’t think this issue of discrimination in our CIVIL marriage laws should have anything at all to do with religion.
With respect to religious movements with which Temple Israel is NOT affiliated --- the question of whether or not a particular faith community or congregation wants to allow same-sex religious weddings is not our concern and should not be the concern of the government. If, for example, the Catholic Church will not permit a church wedding between two gay parishioners – That’s not our concern.
But ------- whether we are religious liberals or religious conservatives or – for that matter – atheists or monotheists or polytheists --- American citizens should not be discriminated against by our government based on sexual orientation.
As I’m sure most of you already know, the proposal on our ballots this November would do just that. It asks if the Minnesota State Constitution should be amended to state that the only marriages that will be civilly recognized by this State will be marriages between one man and one woman.
If this amendment passes, it will not change existing Minnesota law. Minnesota has already legislated that only opposite-sex marriages can be civilly recognized by the State of Minnesota. What the ballot amendment will do is two things: (1) It will prevent the Minnesota courts from ever holding that the current law against same-sex civil marriages is unconstitutional on equal protection grounds; And (2) It will prevent future Minnesota legislatures from opening the institution of civil marriage to same-sex couples.
Whether the amendment passes or fails, it will have no effect on the various and diverse religious definitions of marriages that exist among the various and diverse religious communities of our state. It will effect only the CIVIL definition of marriage in this state --- by enshrining into our constitution the narrow, heterosexist version of the civil definition of marriage that keeps it closed off from participation by gay and lesbian citizens.
When the New York State legislature last year was debating legalization to open the institution of civil marriage to same-sex couples there, New York State Assemblyman Charles Lavine summed up the fight for marriage equality in New York with this memorable sound bite: "Only second-class states have second-class citizens." By that yardstick, Minnesota already is a second class state (as are the majority of states in the USA) because it currently discriminates against gay and lesbian people in its civil marriage laws. The ballot amendment this November would, if it passes, make Minnesota a third-class state by enshrining that discrimination in our Constitution.
The fight this November is to ensure that we don’t move from being a second class state to being a third class state. The fight to move us from being a second class state with second class citizens to being a first class state where all are treated equally under the law will still have to wait for a future day, but at least let us not distance ourselves further away from that still unattained goal.
What I’m really determined not to do, on this bima tonight or in the weeks ahead, is to try to pick and choose Bible verses that we can use to defend the notion of equality versus those Bible verses that our political adversaries pick and choose to attack the notion of equality.
First of all, anytime you encounter anyone justifying an anti-equality argument through quotations from the New Testament, our first response as Jews should be to say: Don’t use your religious scriptures to justify civil discrimination against those who do not belong to your religion and who do not accept the authority of your religious scripture for anyone who is not an adherent of your religion.
But, what about when folks quote verses at you from our own Jewish Bible, the Tanakh, or as some Christians call it – the “Old Testament?”
I’ll be the first to tell you that, in my view, the Tanakh and the rabbinic and medieval era commentaries don’t support the notion of equal treatment for all regardless of sexual orientation. There are some majorly homophobic passages in Jewish tradition, just as there are some majorly sexist and xenophobic passages.
However, I agree with the approach that Professor Marc Brettler of Brandeis University suggests in his book How to Read the Bible, published by the Jewish Publication Society in 2000. Professor Brettler makes a distinction between “sourcebooks” and “textbooks.” A “sourcebook” contains many perspectives as compared to a “textbook” which adopts a particular point of view. Brettler explains:
“The Bible […] comes from many places and times; it conveys the interests of many different groups. Within it, we can find more than one opinion on almost any single item of importance – the nature of God, the corporeality of God, intergenerational punishment, the relationship between men and women, the attitude towards foreigners, retribution, etc. In this sense, the Bible is surely more sourcebook than textbook.
(Brettler, How to Read the Bible, Jewish Publication Society, 2005, p. 280)
And I also take strength in the Reconstructionist approach to Judaism that defines Judaism as “the evolving religious civilization of the Jewish people.” In the Reconstructionist approach, “the past has a vote but not a veto” on how we participate in the evolution and development of Judaism in each new historical era. There is much of spiritual and moral value in our classic texts. As anyone who comes to our Shabbat morning Torah study group can tell you, I am very much a lover of Torah. I do indeed believe that, as it says in the Book of Proverbs,
עֵץ-חַיִּים הִיא, לַמַּחֲזִיקִים בָּהּ; וְתֹמְכֶיהָ מְאֻשָּׁר/ “It is a tree of life to those who hold fast to it, and all its supporters are happy.” (Prov. 3:18)
However, we don’t need to accept the homophobic elements in our classic Jewish texts any more than we need to accept their outdated views on slavery, animal sacrifices, genocide of non-Israelite nations, or female subservience to men.
Judaism doesn’t shy away from argumentation, not by a longshot. In the Talmud there is a great story about Rabbi Yochanan and his most brilliant disciple, Resh Lakish (also known as “Son of Lakisha”). The two had had a falling out which had upset Resh Lakish so much that Resh Lakish had became ill and died. (In the following passage, I should first explain that a “Baraita” is a rabbinic teaching that was not included in the Mishna (published around 200 C.E., but which was nonetheless known and studied by the rabbis of later generations who are quoted in the Talmud). And so we read in Tractate Bava Metzia, page 84a:
Resh Lakish died, and Rabbi Yochanan was plunged into deep grief. The rabbis said, 'Who shall go to ease his mind? Let Rabbi. Eleazar ben Pedat go, whose disquisitions are very subtle.' So he [Rabbi Eleazar] went and sat before him [R. Yochanan]; and on every dictum uttered by Rabbi Yochanan, Rabbi Eleazar observed: 'There is a Baraitha which supports you.'
Let me stop here to explain what we mean by the word “Baraita”. But first I have to explain to you the word “Mishna.” The Mishna was a compendium of rabbinic teachings that was codified around 200 C.E. A “baraita” (the word literally means “outside”) is a rabbinic teaching from that period which was not included in the Mishna, but which was nonetheless known and studied by the rabbis of later generations who are quoted in the Talmud. So, returning to the words of Tractate Bava Metzia in the Babylonian Talmud:
Resh Lakish died, and Rabbi Yochanan was plunged into deep grief. The rabbis said, 'Who shall go to ease his mind? Let Rabbi. Eleazar ben Pedat go, whose disquisitions are very subtle.' So he [Rabbi Eleazar] went and sat before him [R. Yochanan]; and on every dictum uttered by Rabbi Yochanan, Rabbi Eleazar observed: 'There is a Baraitha which supports you.' 'Are you as the son of Lakisha?' [R. Yochanan] complained: 'when I stated a law, the son of Lakisha used to raise twenty-four objections, to which I gave twenty-four answers, which consequently led to a fuller comprehension of the law; whilst you say, "A Baraita has been taught which supports you:" Do I not know myself that my dicta are right?' Thus he went on ripping at his garments and weeping, 'Where are you, O son of Lakisha, where are you, O son of Lakisha;' and he cried thus until his mind was turned. Thereupon the Rabbis prayed for him, and he died. (Bava Metzia 84a)
There are good reasons for having an argument and there are bad reasons for having an argument – or in Jewish terminology, there are arguments “leshem shamayim” (“for the sake of heaven”) and arguments “shelo lesheym shamayim” (“not for the sake of heaven”).
As we learn in Pirke Avot:
"Any dispute which is for the sake of Heaven will ultimately be of enduring value, and one which is not for the sake of Heaven will not be of enduring value. What is a dispute for the sake of Heaven? This is a debate between Hillel and Shammai. What is a dispute not for the sake of Heaven? This is the dispute of Korach and his assembly." (Pirke Avot 5:20)
The schools of Hillel and Shammai debated over the interpretations of Torah but members of their families still intermarried with one another. Their disputes were conducted for the sake of the search for truth, just like Rabbi Yochanan’s disputes with his beloved student Resh Lakish. Korach and his assembly, on the other hand, argued with Moses and Aaron not out of concerns for truth and justice but rather out of lust for power. It seems to me that the fight over the marriage amendment is an argument shelo beshem shamayim --- an argument not for the sake of heaven.
Rather, it is an attempt to add insult to injury by certain religious conservatives who want to violate the separation of church and state to enshrine their misguided, reactionary, bigoted and homophobic views into our constitution and by manipulative legislators who want to play on this bigotry to help them increase voter participation among their likely supporters.
I don’t like using such charged language as that in public, especially from a synagogue pulpit. I much prefer the approach praised by the Prophet Malachi who speaks of a messianic time when
אָז נִדְבְּרוּ יִרְאֵי יְהוָה, אִישׁ אֶל-רֵעֵהוּ; וַיַּקְשֵׁב יְהוָה, וַיִּשְׁמָע, וַיִּכָּתֵב סֵפֶר זִכָּרוֹן לְפָנָיו לְיִרְאֵי יְהוָה, וּלְחֹשְׁבֵי שְׁמוֹ
"Then, those who stood in awe of the Eternal conversed with one another; and the Eternal heard and noted it, and a Book of Remembrance was written concerning those who revere the Eternal and esteem God’s name." (Mal. 3:16)
The key here for me in that quote from the Book of Malachi is conversation. Indeed that’s what Minnesota United for All Families is looking for all of us to do – have conversations with our friends and neighbors to encourage them to join us in voting NO.
I’m personally feeling a bit in the eye of the hurricane right now over this issue, to the point where I’m not sure how good I am with the whole conversation part.
But, as for that Book of Remembrance of which Malachi speaks, like the Book of Life of which the poets of the Machzor wax poetic… let me conclude by wishing you all, Gmar Chatimah Tovah ("a good sealing") as well as Tzom Kal ("an easy fast).
And may we see progress towards a more just and caring society in the year ahead.
(c) Rabbi David Steinberg 5773/2012