The Supreme Court of the United States, Same-Sex Marriage and Other Prohibitions

Nathan Lopes Cardozo

vrijdag 17 juli 2015

Now that the Supreme Court of the United States has legalized same-sex marriage, we need to ask ourselves why there has never been any discussion about other illegal sexual relationships, such as incest, and why a union as obvious as a heterosexual marriage is actually permitted. This question may sound very strange, even disturbing and shocking, but it is one of the most profound questions we must ask. Doing so will help us understand what is behind the fierce debate that is now taking place concerning the Supreme Court’s decision. It raises many questions concerning marriage, sex, religious freedom and the role religion plays in our society.

In the Mishnah Chagiga (1) we are confronted with several educational directives related to esoteric matters. The Mishnah instructs that some subjects, such as the secrets of Ma'aseh Bereishit (The Creation), should only be taught to one person at a time, while other metaphysical topics, such as Ma'aseh HaMerkavah (the vision of the Divine Chariot) mentioned in the book of Yechezkel, should only be taught to one pupil, and only if he is a wise man and has much knowledge of his own. The main reason given for these rulings is to prevent misunderstanding. When only one student at a time is present, there will be little chance that he will misunderstand his mentor. He will be forced to listen carefully to every word spoken by the teacher. There is no luxury of dozing off, hearing only half the lecture, and drawing the wrong conclusions.

At the opening of this Mishnah we are informed that matters of arayot (forbidden sexual relations) should not be taught to more than two students at a time. The standard reason for this ‘lenient’ rule (two students instead of only one) is that both students will make sure they hear all that is said about sexuality, since most human beings are preoccupied with the subject. Even when the teacher is speaking only to one of them, the other one will also listen. Three, however, is considered problematic, since the other two may start a discussion between themselves, draw the wrong conclusions and permit what is forbidden, or vice versa.

The Maharsha (2), however, gives a different interpretation regarding the nature of the rules related to sexuality. According to him, these rules are not just based on the chance that the students may come to the wrong halachic conclusions, but because these matters of arayot are totally mysterious as well and belong in the same category as the esoteric Ma’aseh Bereishit and Ma'aseh HaMerkavah. No explanation is available as to why certain sexual relationships are forbidden and others are permitted. They are also ‘beyond’. The Maharsha asks, for example, why marrying one’s sister is prohibited. He also questions why a man is prohibited from marrying his living wife’s sister, but is allowed to marry the same sister after his wife has died (3). According to the Torah, one is allowed to marry more than one wife, but Rabbeinu Gershom (c. 960-1040?) forbade this around the year 1000 (4).

To claim that any of the prohibited relationships are fundamentally ‘unethical’ is untenable, for the obvious reason that the children of Adam and Chava (Eve) clearly married their brothers and sisters. Nowhere is it written that this was forbidden. In fact, it was the only way God saw fit to increase the human species. Similarly, we see that Yaakov married two living sisters. The same is true about the parents of Moshe Rabbeinu. According to Torah law, Amram was not allowed to marry his aunt Yocheved (5). Most remarkable is the fact that these marriages laid the foundation for the Jewish people and were therefore indispensable!

It is for this reason, says Maharsha, that one should teach these matters to only two pupils at a time so as to prevent any interpretations, since there are none. The laws of sexuality are so complex ? in fact, completely incomprehensible ? that two students might possibly start arguing between themselves while the mentor is concentrating on the third. The students would advance all sorts of explanations, claiming that they found the raison d’etre of the subject and draw the wrong conclusions.

Maharsha’s observation is therefore of primary importance. All discussions about why certain marriages or sexual relationships are forbidden are doomed to fail! No human reasoning can explain them in any consistent way.

Religious thinkers should therefore refrain from giving primary reasons for these prohibitions. It would be counter-productive and dangerous. There is no objective reason why homosexuality and incest are forbidden. From the religious point of view, these prohibitions are celestial, just like Ma’aseh Bereishit and Ma’aseh HaMerkavah. They seem to touch on metaphysical criteria that are known only to God.

The same is true for the secular argument. On the basis of what rational principle should a homosexual relationship be permitted but incest forbidden? Would it not be more reasonable to allow the latter, on the condition that the couple ensure that there will be no children so as to prevent any genetic defects?

On the other end of the spectrum, one could ask religious and secular thinkers why a normal heterosexual relationship is permitted and even encouraged? What, after all, are the moral grounds to permit such a relationship? Perhaps every kind of sexual activity should be forbidden and considered unethical since, as Aristotle put it (6) ? and Maimonides concurred (7) ? “… the sense of touch is a disgrace to us.” This is what famous Danish philosopher and father of religious existentialism Søren Kierkegaard seems to claim when he argues against marriage (8). The fact that this would ultimately result in the extinction of mankind in no way diminishes the ethical problem.

This problem is more pronounced when considering that heterosexual marriages result in women becoming pregnant, often suffering great pain and sometimes in mortal danger. Who says that this is ethically permitted? As a matter of fact, what gives us the right to even give birth to children when the chances are high that they will fall victim to diseases, war and natural disasters? Is it not more responsible to avoid having children, since those who remain unborn would not suffer the slightest discomfort?

However unsavory our argument may sound, we are forced to ask, from a secular perspective, what could be wrong with incest and other relationships that are forbidden by secular law? As long as such relationships are formed by mutual consent, and no one is physically or mentally hurt, there should be no reason for these relationships to be forbidden.

Arguments such as ‘the need for human dignity’ are of little meaning, because it is unclear how one defines human dignity. And even if there was a clear definition, one could ask why it should be an absolute inviolable value.

We must therefore conclude that from the religious and secular perspectives, laws related to sexuality are arbitrary. In both societies these laws are rooted in a ‘will’ that is outside of what we call ‘reason’. For the religious, it is the will of God that provides us with rules telling us what is permitted and what is prohibited. And for the secular, it is mutual consensus, the democratic vote and often a kind of relativism that will decide what is permitted and what is prohibited. Secular law is probably rooted in the notion that certain sexual relationships are prohibited because they feel wrong, although we are unable to explain why. Paradoxically, we may call this a relative ‘categorical imperative’, using Emanuel Kant’s famous axiom. Some philosophers, however, would claim that this ‘imperative’ is borrowed from religious categories as a result of a kind of Jungian archetype, although it is doubtful that Jung had this in mind or would have even agreed.

So we are forced to conclude that any sensible debate between the religious and secular communities on the question of what is permitted, or prohibited, when it comes to sexual relationships is meaningless. Both come from different foundational categories. One is either prepared to accept them or one rejects them.

There is no way that either party can deliver an argument that is objectively sound. No ethical claim can be made to decide whether heterosexual, homosexual and other relationships should be forbidden or permitted. Ultimately, it is an amoral issue, which can be decided only on the acceptance or rejection of some will (such as God's), or of some type of cultural taboo grounded in a feeling of uneasiness with certain sexual activities.

Whether or not the homosexual act, forbidden by the Torah, is identical with the one in a same-sex marriage is an altogether different question. Religious authorities and thinkers will have to put their minds to this weighty question. It will be one of the most daring decisions they will ever have to make.

In the meantime, it is the task of both parties to make sure that people do not get hurt by these religious or secular principles and that their rights are ensured. Not only will it be necessary to protect the rights of same-sex couples, but it will be just as essential to protect the rights of synagogues, churches and other religious groups to express and follow their religious convictions.

This will become a major headache for the United States Supreme Court, the lower courts, and all of us in the years to come. What will become clear is that the courts will be unable to come up with a consistent solution and will have to fall back on compromises and ‘legal trade-offs’.

Perfect solutions to human problems cannot be coherently conceived.

(1) Chagiga 2:1.
(2) Rabbi Shmuel Eliezer Eidels (1555-1631).
(3) See Vayikra 18: 9, 18.
(4) See Shulchan Aruch, Even Ha’ezer 1:9-10.
(5) Vayikra 18: 12-13.
(6) Nicomachean Ethics III, 10.
(7) Guide for the Perplexed 11: 36,40; 111: 8,49.
(8) The Last Years: Journals 1853-1855.

7 + 4 = ?

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