Rending the Body Politic: Where the Bullets Really Go

By Rabbis Marc AngelHillel Goldberg anPinchas Stolper

In response to Rabbi Broyde’s article here

Notwithstanding Professor Broyde’s impressive learning and careful analysis, he has missed the point. He writes as if there were no difference at all between homosexuality and other issues in Jewish public policy. He writes as if there were no special challenges or conditions that homosexuality poses, as if it were the most normal thing in the world to ease homosexuality into the vocabulary of Orthodox Jews – and as if it is only Orthodox Jews who share the unease.

He writes as if it were already a settled issue in American law that homosexuality is a category deserving of civil rights protection, perfectly parallel to race, religion, and national origin; and already a settled issue in American society that homosexuality is a cultural norm, deserving of every legal dignity. He writes as if there were no debate about these matters, as if a clear majority in this country favors homosexual rights, such that to oppose them is to endanger Jews. He writes as if a majority of voters in Colorado and various cities around the country, most notably in Oregon, never voted to disallow ordinances designed to name homosexuals as a specifically protected class.

He writes as if the Orthodox Jewish community is a small, relatively unsophisticated group – as indeed we were in this country some 50 years ago – such that we can only approach this issue on the defensive. He writes about safeguarding Orthodox interests, as if Orthodox Jews must presume that they can have no impact on the larger legal and social order. He writes, in short, as if homosexuality were a given, such that Orthodox Jews can do nothing other than figure out how best to make peace with it, to protect their interests by defending homosexuality on the basis of an American law now settled, fixed, determined, clear.

Nothing could be further from the truth. A critical part of the public debate on homosexuality is over how the law should rule. Is homosexuality, which is a behavior, legally equivalent to race, a genetic characteristic; or, is homosexuality legally equivalent to adultery, incest and any other choice of sexual behavior? This is the issue that exercises both sides of the homosexual debate and therefore exercises the courts. It is the Jews’ job to use the legal system just as the homosexual lobby uses it – to bring the moral authority of the courts to bear on a moral question.

To cast the legal issue, as Professor Broyde does, in terms of homosexuals – people -rather than of homosexuality – a pernicious philosophy – is to be removed from the way the conflict is being waged, not just in the streets, not just in the media, but in the courts. There, too, the issue is homosexuality, for there is no necessary (let alone sufficient) bas is for naming homosexuals as a new protected class unless homosexuality is fixed, just like race or national origin. If homosexual activists advance their position on homosexuality in the courts, so must Orthodox Jews. [1]

Professor Broyde dwells on Orthodox Jewish interests as if only Orthodox Jews can, should and may be concerned about these interests, as if the homosexuality issue has no universal import. He writes as if it is only Orthodox Jews who care about the legitimation of this destructive philosophy. He writes as if there were no legal arguments – separate from the moral issue – advanced by non-Jews to defeat laws that name homosexuals as a separate class of protected persons. He writes as if no one were concerned – apart from moral considerations – about the fragmentation of American society, the Balkanization of culture, into competing, ever smaller groups of people. He writes as if no non-Jews were concerned about the specter of another basis for affirmative action. He writes as if there were no natural, common bond between Orthodox Jews and others whose theology is very different from our own. He writes as if most civilizations since antiquity did not recoil at homosexuality, as if this issue did not disturb people and families everywhere.

The present struggle over homosexuality is a critical social, moral, cultural and public – battle that can, with difficulty, be won, or at least significantly altered. Professor Broyde seems to believe that the battle has already been lost; that, therefore, Orthodox Jews have nothing to do but pragmatically, humbly, defensively support homosexual rights, while inconsistently hoping that by adopting the other points of the agenda in our article, morality will be preserved. Knowledge of homosexual activists reveals that, to them, this is a battle for keeps, no holds barred, no quarter given, no tactic unseemly. In this philosophical battle, defenders of morality cannot give an inch and hope to prevail. Professor Broyde writes as if homosexual activists, should you side with them in one arena, will support you in another. This shows that even on the pragmatic grounds the professor favors, he is poignantly unaware of the dynamics of the battle. Against the reality of these dynamics, and keeping in mind the Orthodox community’s sophistication, the strength of its moral authority, and the large number of real or potential allies, we address some of the points he raises, preponderantly in the order he raises them.

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1. Professor Broyde raises the issue of whether we ought “to seek to deny political rights.” The issue is not the denial of political rights, but the creation of them.In virtually every municipal, state, and federal statute, “sexual orientation” does not appear as a category of law. Why should Orthodox Jews sit passively while homosexual activists try to amend every pertinent statute in order to sustain homosexuality – to taint public discourse, to undermine the family, to challenge civilization itself – by creating a new protected class?

Professor Broyde’s answer is that if Orthodox Jews do not support homosexual rights, then, in the future, someone will seek to deny rights to Jews. This is strictly a pragmatic argument. It is an argument that presumes this reality: religion and homosexuality are so obviously equivalent in American society that if Orthodox Jews oppose the creation of a new protected class, that of homosexuals, then the bulk of American society will turn on American Jews. In reality, this has not been so. In the largest test case so far – Colorado’s Amendment 2, which denied Colorado and its municipalities the right to designate “sexual orientation” as a legally protected status – the majority of voters responded favorably to arguments against the creation of this new category of protection. Defenders of morality won the sympathy of the majority of voters, not the other way around. On the pragmatic grounds Professor Broyde sets forth, reality has disproven him.

Now, he might reply that the Colorado vote went the way it did because of Christian fundamentalists, and there is more to fear from them than from homosexual rights activists. Again, wrong. The majority of voters in Colorado are not Christian fundamentalists. They are people who knew they were “being had.” They looked at the three Colorado cities that had earlier passed homosexual rights ordinances, which Amendment 2 would overturn. They saw that these three cities had passed these ordinances against a background of no systematic discrimination against homosexuals. They knew, just as we argue in our article, that when people keep their “orientation” to themselves, they are not fired, nor evicted (with, of course, an occasional exception). They knew that there was no need for these ordinances except to the extent that homosexual activists created the impression of one. They knew, in short, that the legal system was being exploited to advance a philosophy of homosexuality more than rights for homosexuals. So they voted no.

To be sure, among those who voted no were Christian fundamentalists. To be sure, these fundamentalists played an important leadership role in the vote. However, virtually no anti-Semitism was noticed among these fundamentalists. On the contrary, the opportunity to work for a common moral goal that raised none of the theological differences between Judaism and Christianity built bridges between Orthodox Jews and Christians. The risk-benefit analysis went the opposite way of Professor Broyde’s prediction. Voters didn’t categorize homosexuality as “general civil rights law.” The last thing they did was regard support for Amendment 2 as grounds for repealing statutory protections such as those under Title VII.

Parenthetically, disastrous scenarios also proved to be unfounded concerning New York’s 1993 Salute to Israel parade. As per our original article, the issue was not whether to march with any Jew whose sexual behavior (like all sexual behavior) should be private; but whether to march with an institution that legitimated homosexuality. A tiny minority in the Orthodox community set forth its own risk-benefit analysis: support for Israel should take precedence over legitimation of homosexuality. To its credit, the Orthodox community, both those who worked for and against a compromise on the parade, correctly saw this risk-benefit analysis as submission to the homosexual agenda and recognized an overriding moral and public policy issue. The Orthodox stand against homosexuality, which put the parade in doubt, had the effect of illuminating just where the bulk of support for Israel (at least on the popular level) lay. Rather than casting doubt on Orthodox support for Israel, a stand on principle highlighted it. This case, though different from the vote on Amendment 2, had the same results. When people stand up against homosexuality, the stand is supported.

2. Professor Broyde equates “the basic rule of civil rights” with free speech, namely, that “supporting the right of another to speak is not the same as agreeing with what the person says.” The professor ignores a critical distinction: between speech and action. Of course one defends the right to speak, no matter the content. One does not, however, defend any and every action. Free speech offers no analogy. The First Amendment has always been recognized as unique in scope. Nothing in it or in any other American law requires anyone to protect the right of anyone else to act in any imaginable way he or she chooses.

While backing homosexual rights in jobs and housing, Professor Broyde would deny them “when marriage and sexuality is taught in the schools or favored in the tax code and property laws.” This distinction, valid to Professor Broyde, is invalid to homosexual rights activists. It is precisely the totality of society that these activists seek to transform. It is precisely a legal redefinition of marriage, of inheritance and of health care for which homosexuals activists battle. They do this in New York City, in Denver, in San Francisco – every day seems to bring a news story of some new “right” that homosexuals seek, somewhere. All of these rights have one goal: the rendering of homosexuality and heterosexuality utterly equivalent, legally, socially and morally.

Professor Broyde profoundly misunderstands the homosexual agenda by characterizing part of it as a search for “a preferred place [his italics] in the legal or social spectrum. “The distinction between rights for jobs and housing, on the one hand, and between marriage, the tax code and property laws, on the other, is entirely spurious, according to homosexual activists. Professor Broyde’s distinction has no place in the real world. Homosexual activists seek no “preferred place.” To them, all homosexual rights, no matter their nature, are equal and indispensable. Activists struggle for the whole, not the parts. This is why Orthodox Jews must respond to homosexual activists on every level, including that of homosexual rights laws. They are just a tactic for a larger end.

The only proviso on all of this is that Orthodox Jews (and everyone else) should not impose any avoidable hurt. Certainly, a homosexual who keeps his or her “orientation” private deserves not to be penalized in job or housing – but then again, if “orientation” is kept private, he or she will, in the nature of things, not be penalized. There is no need for laws to insure such protection. And if homosexuals reply (as many of them do), “but I don’t want to keep this private!” then there you have it: the struggle is over philosophy, over a vision of society, not over laws. The very seeking of such laws – and Professor Broyde’s willingness to support them – advances homosexuality per se.

3. The criminalization of homosexuality in 24 states has little if any bearing on the issue, for three reasons:

  • As Professor Broyde himself points out, the criminal offense is deviant sexual acts, not just homosexuality, and the criminal offender is anyone, not just homosexuals. As such, the homosexual is not discriminated against.
  • Even when homosexuality is exclusively prohibited, these laws are virtually never enforced, precisely for the reasoning we support: when no one knows what you’re doing privately, no one can penalize you for it.
  • The issue today is not criminalization, it is decriminalization, legitimation, and promotion of homosexuality. Nothing in our article suggests that we favor public discrimination against homosexuals. Just the opposite. Let homosexuals keep their practices to themselves, not only to preserve the moral atmosphere, but to eliminate the temptation for public discrimination. This approach reaffirms that of countless societies, Jewish and non-Jewish, for centuries. Note well: It is the homosexual rights laws themselves – the attempt to create a new category of persecuted minority – that feeds public resentment. As for the “occasional” entrapment, Professor Broyde has indeed caught us on a technicality. He cannot, however, logically suggest that quiescent criminalization laws, in most places enforced infrequently if ever, require Orthodox Jews (or anyone else) to join homosexual activists in the legitimation of homosexuality at every level in the legal arena.

5. Professor Broyde writes, “The next statement [of ours] … ‘Citizens have a right to not be involuntarily exposed to overt sexual behavior or preferences, whatever their nature’ has no basis in American law, jurisprudence or history.” Really? American history has no tradition of modesty? Harry Truman, believing Christians, and decent immigrant families never existed? The contemporary age of overt, blatant, often obscene public display of sexuality is not unprecedented?

A professor of law, Professor Broyde apparently thinks that our use of the word “right” deserves only a legal analysis. The issue here is legal, yes, but also far more. Culturally, socially, and historically, American citizens have a right not to be involuntarily exposed to overt sexual behavior. To suggest some cogent equivalency between overt sexual behavior and wearing a ta/is in public is to assume an extraordinarily defensive posture – as if Orthodox Jews need to debase their own traditions out of fear that otherwise someone else will do so. As for American law and jurisprudence, the state regulation of such things as exposing oneself to another person is precisely the protection of citizens from the involuntary sight of overt sexual behavior.

6. Professor Broyde substitutes “Hindu” for “homosexual” in one of our paragraphs and thus reaches a conclusion that he takes to be patently obvious: the denial of rights to homosexuals is equally absurd as the denial of rights to Hindus.Several distinctions:

  • Religion is already a protected category. Homosexuality seeks to be created as one.
  • Sexual behavior can be private in a way that religious identity cannot.
  • Homosexuality is a behavior in a way that religion (and race and national origin) are not.
  • The existence of idolaters in American society does not necessarily pose any threat to the moral fabric of either the idolaters or other Americans. The public legitimation of homosexuality does. The Hindu threat to theistic integrity, Jewish or non-Jewish, is limited, typically, to a gullible young person in a public airport. Homosexuality’s threat to Jewish and non-Jewish integrity is pervasive, as homosexual activists seek the legitimation of homosexuality through the courts, the movies, the print media, the classrooms, the legislatures, the literary and television worlds – even public parades! Professor Broyde does not grasp the difference between a legal and religious aspiration, that of the Hindus, for example, and between a pervasively cultural, social, legal, moral, and psychological aspiration, that of homosexual activists. This difference means that support for Hindus need not equate to support for homosexual activists. Therefore, Professor Broyde’s citation of cases in which Orthodox organizations advocate support for ” religions and beliefs that are completely foreign to Jewish law or ethics” is essentially irrelevant. Baldly put: the issue is not the adoption of Jewish law by the government; it is the proposed adoption of immoral standards by the government – standards rejected not just by Jewish law but by most civilizations, religious and secular, throughout history. Believers and non-believers alike are repelled by homosexuality.

7. Professor Broyde draws analogies from Europe. “…many of the non-Jewish groups that seek to curtail the political rights of the homosexuals and others who deviate from the Judeo-Christian’ ethics have, historically been the profound enemy of the Jewish community and have participated in many a slaughter of our ancestors in Europe and elsewhere.” As if there were no difference between Europe and America! As if it were wise to base Jewish public policy in the U.S. on pogroms in Europe; as if profoundly American geographical, ideological, theological, and political conditions have not significantly colored American Christianity; as if the professor’s fear had any resonance in Colorado’s Amendment 2 battle; as if there is no history in the U.S., particularly in the post-World War II era, of Jewish Christian and Jewish-secular alliances on many issues.

It is specious to regard alliances with Americans, secular or Christian, who have a healthy moral sense, as necessarily joining hands with ” those who have oppressed (and murdered) us in the past.” While it is visceral to be eternally vigilant and skeptical, this alone would blind Jews to American reality. To distort this reality and thus to contemplate institutional silence on the moral issue in contemporary America, is to require Jews to withdraw to a mental ghetto.

Professor Broyde speculates that American Christians, in the future, could undermine Jewish existence in America. But now, not as a matter of speculation, homosexual activists try to do much the same. Rather than avoiding an alliance with a possible future enemy, it makes more sense to ally with those who want to fight a present danger.

8. Professor Broyde writes that any diminution of support by one group for the civil rights of another could endanger the legal protections of all groups. Just the opposite is the case. It is precisely the reductio ad absurd um of limitlessly multiplying “groups” claiming special protections that undermines the present legal protections. Because a gunman recently entered a California law firm and murdered a lawyer in cold blood, the head of the California Bar Association suggested that lawyers become a new class of persons. Outlaw lawyer jokes! Classify them as “hate crimes!” he seriously insisted. It is this “logic,” stimulated by homosexual activists (among others), that threatens the legal fabric of minority protection. By resisting Balkanization, Orthodox Jews can contribute to the protections that genuine minority groups now enjoy.

9. The reason why one cannot cite a Jewish culture destroyed by pluralism is because, before America, there never has been a truly pluralistic culture. As for the resurgence of Orthodoxy in America since the 1960s, Professor Broyde casts a narrow scope. He ignores the devastation of the majority of the American Jewish community.
Cultural pluralism has multiplied intermarriage and deepened assimilation, already destroying part of American Jewry. Now, the last thing we oppose is political or cultural pluralism, but to suggest that if Orthodox Jews don’t support homosexual rights, and, by implication, a limitless chain of other claimed rights, Jews might face “governmental persecution, massive societal anti-Semitism or significant commercial discrimination” is hardly a brief for pluralism.

Pluralism means you enter the fray. You defend what’s right, whether it is held only by you or also by others; and you oppose what’s wrong. Pluralism means: You speak up for what you believe in and promote what you need (shechitah, for example). Of course, pluralism also means political vigilance and wisdom. These, however, are not equivalent to accepting any claim for legal protection made by any party, without regard to the substance, the wisdom, or the universal import of the claim.

If there is a basis in our pluralistic society for fearing “massive societal antisemitism,” it is backing away from the likes of the most critical legal-cultural-moral battle in American society today. As Rabbi Meir Simcha of Dvinsk so trenchantly observed, it is when Jews fall away from Torah that society falls on them.

This response, drafted by Rabbi Hillel Goldberg, was jointly revised by Rabbis Goldberg, Marc Angel and Pinchas Stolper.

Rabbi Angel is the Rabbi of Congregation Shearith Israel, the Spanish-Portuguese Synagogue of New York. He was recently the President of the Rabbinical Council of America. 

Rabbi Goldberg is the Executive Editor of the Intermountain Jewish News and a contributing editor of Jewish Action. He is the author of Illuminating the Generations; The Second Volume of The Fire Within (ArtScroll).

Rabbi Stolper is the Executive Vice President of the Orthodox Union.


NOTES

[1] A recent study suggests that homosexuality is inborn. This does not alter the fact that behavior stems from moral, social, economic and political, as well as inborn, conditions. Morally, the paragraph of the original article remains intact: ” … Even if there were universal agreement [on a biological basis homosexuality), the conclusion drawn by homosexuals’ homosexuality is morally neutral – is fallacious. If homosexuality is an inborn predisposition in some people, it does not follow that they cannot or need not change.

Teshuvah is precisely the belief that one can and should alter inborn (and other) non-normative predilections. Everyone has some sort of deeply rooted biological or psychological challenge to deal with. Even granted that a given individual with an inborn predilection will change only minimally, it does not follow that the effort to change is morally valueless. Quite the contrary. The refusal to submit to an immoral impulse, even without the sublimation or transfiguration of that impulse, is, in Judaism, a very high moral achievement. The moral challenge remains, even if a biological basis to homosexuality were substantiated.”

Socially, a public acceptance of homosexuality reinforces the sense in “experimenters” (especially teenagers) that they can only be homosexual. This increases the number of homosexuals far beyond the number predicted even by certain scientific studies. Conversely, a public rejection of homosexuality decreases the number of homosexuals. Science alone neither should be, nor is, determinative. Values change the equation.

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