The Jewish case for marriage equality
BENJAMIN HOLZMAN 
ON May 27, the California Supreme Court voted 6-1 to uphold Proposition 8, a decision branded as a further setback to marriage equality in California.¬†Though some might dismiss the importance of this decision as merely a confirmation of a previous vote, I believe the ruling has much deeper ramifications -‚Äî it essentially validates the citizenry’s ability to define human rights, making them no longer “inalienable” but rather subject to the whim of popular opinion.¬†
For this reason the ruling is not just an affront on gay couples in California, but for all minority groups, especially Jews.¬†Before I delve into the matter further a brief history. Written in 1849, California’s state constitution did not specify the gender of those that could be legally wed, as same-sex marriage was simply not on the cards at the time and not in the mindset of the authors of the constitution.¬†
After gay rights activists began gaining ground in the 1960s and 70s, however, efforts were made to ban same-sex marriage, first in 1977 through a legislative statute, and again in 2000 through a ballot proposition (popular vote). The passage of these statutes, though, did not alter the ambiguous constitution in any way.
Despite these two statutes, in 2004, then San Francisco Mayor Gavin Newsom famously decided to issue same-sex marriage licenses in spite of the ban, which resulted in the matter being taken to the Supreme Court.¬†On May 15, 2008, the California Supreme Court, in their historic ruling “In re Marriage Cases”, declared any statutory ban on same-sex marriage unconstitutional, in doing so invalidating the 1977 and 2000 statutes.¬†
In their judgment, the court argued that a ban on same-sex marriage constituted a violation of “state constitutional rights” which made it, in effect, tantamount to unlawful state-sanctioned discrimination.¬†It further argued that the right to marry “constitutes a basic civil or human right of all people”, not a “benefit or privilege that a government may establish or abolish as it sees fit”.
Importantly, California became the only state in the US to declare any prohibitive legislation based on “sexual orientation ‚Ķ like gender, race and religion” to be “constitutionally suspect”. In doing so it deemed sexual orientation a protected class, in the same category as gender, race and religion, whereas other states which have allowed same-sex marriages have done so on the basis of “rational basis review”, a conceptually important distinction, and one that I will return to.
Immediately after this landmark ruling, which effectively reversed all previous interpretations of marriage as defined by the California constitution as it stood, opponents of same-sex marriage submitted a ballot proposition (Proposition 8) to change the constitution that the Supreme Court was interpreting. 
Specifically, the ballot proposition sought to have the phrase “only marriage between a man and a woman is valid or recognized in California” added to the constitution. Not only would this overturn the Supreme Court ruling of May 2008, its unmistakable language would preclude the Supreme Court Justices from ever interpreting this revised constitution to permit same-sex marriage again, regardless of their personal views on the matter.¬†In their minds, it would be ‘case closed’, bar any future changes to the constitution in the other direction. As long as the majority of the population were in favour of a same-sex marriage ban, their constitution would reflect this, so that no court or parliament could ever deem it to be a violation of constitutional rights in the future.
That ballot measure was put to voters in the November 4 general election, and was passed by a vote of 52.24% to 47.76%. Immediately following its passage, same-sex marriage proponents brought the matter again to the Supreme Court, arguing this time that the proposition itself was invalid, on the grounds that it constituted an amendment of the constitution, rather than merely a revision of the constitution, a legally important distinction. 
Thus, the question before the court this time was not whether same-sex marriage is permitted under the constitution, but rather whether Proposition 8 was overstepping its bounds did it amount to a constitutional amendment (illegal), or was it a constitutional revision (legal)? The issue before the court was, therefore, a matter of legal technicalities, rather than any interpretation of constitutional human rights. (It is worth noting that Proposition 8 was brought to the Supreme Court before it was included on the ballot for precisely this reason, and the court ruled that Proposition 8 was in fact a valid proposition that could be put to the Californian public.)
At face value, then, the May 27 ruling may be seen as merely a confirmation of the validity of Proposition 8 indeed most legal experts predicted that the court would have to rule in favour of its legitimacy months before the final ruling. However, to diminish the importance of this ruling would be a mistake, as it strikes at the very core of our democratic principles. In my view, this decision is equal, if not greater in significance to Proposition 8 itself, and I come to this view in large part due to my sensitivities as a Jew.
Aharon Barak, celebrated former president of the Supreme Court in Israel, based his judicial career on the conviction that “democracy is a delicate balance between majority will, on one hand, and fundamental values and human rights, on the other”, in other words that “democracy can only be achieved by striking the proper balance between majority rule and minority rights”.¬†It is precisely this balance which was determined by the California Supreme Court and this is why their decision was so important.
Effectively, the Supreme Court declared that, in the case of marriage, majority will rather than any fundamental values or human rights is the ultimate arbiter of who gets to marry whom. Essentially, the right to marry is subject to the vicissitudes of public opinion, able to be constitutionally revised and re-revised at the discretion of the public, which might be influenced by, among other things, persuasive mass-media campaigns based on fear and misrepresentation. 
In California at least, marriage no longer “constitutes a basic civil or human right of all people” as of May 27, 2009. It again became a “benefit or privilege that a government [or popular vote] may establish or abolish as it sees fit”, turning the initial Supreme Court’s stance on marriage as a human right on its head.¬†At its core it is about the will of the majority bearing down on the rights of a minority (the “tyranny of the majority” in Political Science jargon). This is why Proposition 8 specifically, and GLBT rights in general, is a Jewish issue.¬†
As a historically persecuted people, Jews know all too well the difference between a society that upholds the legal rights of minorities and societies that don’t. We also know that formal legal rights are often not enough.¬†While anti-Semitism might be a constant in most societies where Jews reside, ebbing and flowing according to popular opinion but always an undercurrent, what makes the crucial difference is whether our legal rights are enforced by strong democratic institutions and a constitution committed to human rights or whether they exist only as a legal formality, easily overlooked by the state.¬†
When Jews have legal protection only in name, you need look no further than Europe in the 19th century to see how popular opinion may easily erode these protections when they see fit.¬†This is why constitutional human rights laws are so important it effectively insulates Jews and all minorities from the tyranny of the majority. This is precisely why the Nuremberg Laws of 1935 was perhaps the most important blow to German Jewry in the 1930s — it was the act that removed our safety net. Our fate would now be determined by the whim of the citizenry, or worse, the government.
In one of his first acts against the Jews, Hitler redefined marriage by banning all mixed-race marriages. In their “In re Marriage Cases” ruling last year, the California Supreme Court used the case of ‘Perez v. Sharp’ (1948), which reversed the interracial marriage ban, as their legal precedent for arguing the right to marry may not be curtailed by the state.¬†The true damage of Proposition 8, then, was not that it passed, but that it was allowed on the ballot in the first place that marriage equality is votable.¬†
By being put to popular vote, the will of the majority was allowed free reign to bear down on the rights of the minority, exactly what the American Federalists had warned us about all those years ago. What if a proposition banning mixed-race marriages, or the number of Jews entering universities, were put on the ballot in the next election? Sure, these propositions may not pass, but what would this say about the authenticity of the democracy in which these propositions were raised?
The deeper, philosophical question here is: do citizens have the right to determine which rights are granted to whom? Which human rights issues may be arbitrated by the public, which only by judges, and which matters are not up for public debate, instead enshrined in the constitution as unalterable and inalienable?
As an ex-member of Habonim Dror, a Socialist-Zionist youth movement where decisions were only legitimate if arrived at collectively, one part of me believes that only popular decisions are valid. Yet as a student of Jewish history and a firm proponent of human rights, I can appreciate how historic swings in public opinion should not be allowed to undermine certain inalienable rights. At the end of the day, any law that attempts to discriminate based on sexual orientation is necessarily illegitimate, just as a law that discriminates against a religious group or ethnic group is similarly wrong. 
Furthermore, I subscribe to the Jewish notion of dignity over equality. As the right to marry is an essential element of human dignity, it should be upheld in spite of citizen’s right to an equal vote.¬†With this in mind, what made the California Supreme Court ruling in 2008 so remarkable was not its interpretation of the constitution in favour of marriage equality, but rather its commitment to viewing any further measure to separate or discriminate based on sexual orientation “constitutionally suspect”.¬†
For the first time in US history it held that “statutes that treat persons differently because on their sexual orientation should be subjected to strict scrutiny”. This had potentially elevated the issue of sexual orientation to the status of gender, race and religion, to the status of the inalienable.¬†Just as it is now unlawful to put the question of mixed-race marriages to a vote, it was hoped by progressives that it might be similarly unlawful to put the question of same-sex marriage to a vote.¬†
Unfortunately, these hopes were dashed by Proposition 8, the nail in the coffin being the court’s confirmation of its legality. The court’s implied placement of sexual orientation at a higher level of constitutional protection, insulated from the realm of constitutional revisions, was last month undermined by the same court that had initially elevated it.¬†By declaring Proposition 8 legitimate, it revealed that discrimination based on sexual orientation is, after all, votable. The promised “strict scrutiny” toward statutes that treat people differently because of their sexual orientation was, as it turned out, not terribly strict.
A counter-proposition to reverse Proposition 8’s ban on same-sex marriage is slated for either 2010 or 2012, and activists are already working hard to fight for its passage. You can see the latest TV ad from the Courage Campaign (one of many pro-marriage equality groups led, not surprisingly, by a Jew) .¬†Also, be sure to check out their moving clip ‘fidelity’, now the most watched video in the history of Californian politics.
However, even if a counter-proposition does pass in the next few years, the victory will be all the more shallow in light of the Supreme Court’s ruling.¬†Though it might remove Proposition 8’s declaration that “only marriage between a man and a woman is valid or recognized in California” and replace it with “California recognizes marriages of same-sex couples as valid”, surely an important victory, what would prohibit a counter-counter-proposition when the tide of public opinion changes again?
The true victory for the GLBT movement will come not when the public votes in their favour in regards to the extension of marriage rights, or other rights, but when all attempts to limit their rights will be deemed illegal. As Jews who have largely achieved this victory, it is incumbent on us to fight for the extension of constitutional protections to other minorities.
To be fair, the California Supreme Court Justices were not in an easy situation. It must be granted that they oversee an inherited Californian constitution notorious for its alterability through popular vote, which is not necessarily the case in other US states or democratic countries.¬†In their ruling, the Justices noted “[The] petitioners’‚Ķcomplaint is that it is just too easy to amend the California constitution through the initiative process. But it is not a proper function of this court to curtail that process we are constitutionally bound to uphold it”.¬†
Though their ruling in May 2008 was spot-on, in this case there was little for them to interpret‚Äîthe Californian constitution simply affords its citizenry the right to change their constitution. (As an aside, the California constitution is seen by many as a mess, and has been described as “the perfect example of what a constitution ought not to be.”)
Nonetheless, the essential point remains valid, and that point is this: For California or any other state or country to remain an authentic democracy, it must prohibit, constitutionally, all measures that seek to discriminate based on sexual orientation. Why? Because the right to marry constitutes a basic human or civil right, essential to human dignity, and the right to be free from any discrimination based on sexual orientation, or gender, race or religion for that matter, is inalienable. 
In a catchy phrase, because “We hold these truths to be self-evident, that all people are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”¬†As more US states begin to legalise same-sex marriage, while others redouble their efforts to ban it, it is becoming clear that the struggle for marriage equality and GLBT rights is the human rights struggle of the next decade.¬†
In practice, same-sex marriage advocates should fight for marriage equality by simultaneously a) raising awareness of the importance of this issue, particularly to minority groups, b) influencing public opinion by humanizing those in same-sex relationships, highlighting the importance of a separation of religion and state, and drawing attention to this state-sponsored discrimination, and c) lobbying for constitutional changes that would block any attempt to introduce prohibitive legislation that discriminates based on gender, race, religion, and sexual orientation -— in short, to enshrine human rights as the core of our democracy.
For us in Australia, the only western country in the world without a constitutional or legislative bill of rights, one of our first steps must be to introduce a bill of rights into Australian law, an issue the government is currently in the midst of considering.¬†Join www.GetUp.org.au ‘s campaign to introduce human rights laws into Australia. I encourage members of the Jewish community to host a GetTogether about this issue.¬†
I further suggest you check out www.australianmarriageequality.com for more about marriage-equality activism in Australia. In Jewish contexts, I suggest proponents of marriage equality broach this matter as a Jewish issue within Jewish schools, synagogues and institutions. Remember, they came first for the Communists…
As a final word, to those that ask “how can Jews support same-sex marraige when it is clearly forbidden in Judaism?” I answer the following:¬†The support of same-sex marriage must be an imperative of all Jews, whether Torah-abiding or not, for the separation of religion and state is a precondition of any modern democracy, and one central to our welfare as a religious minority.¬†
I am not arguing that Jews or Judaism should recognize same-sex marriages as valid, rather that our society should. The question of the status of same-sex marriages within Judaism should rightly be left up to Judaism itself to resolve on its own terms and without interference, just as every religion in our society should be free to practice their faith on their own terms. That is what it means to live in a society that upholds freedom of religion.
For a society to justify a discriminatory practice based on religious teachings is precisely to subject the state and its citizens to religious values. If you are prepared to argue against the extension of marriage rights to same-sex couples based solely on religious grounds, then, simply put, you must be fully prepared to live in a society where there is no separation between religion and state, and thereby live under the rules of the dominant religion. 
Jews need to realize that civil marriage laws are completely insulated from Jewish marriage laws, and to advocate that marriage be defined by religion is to potentially undermine all the rights we enjoy here in Australia as a result of the separation between religion and state. To put forth this argument in another way, I remind readers that Torah Judaism has some of the strictest regulations regarding human relationships and forbids many forms of sexual activity, not only homosexuality. 
If Jews were to not support same-sex marriage on principle, then they should similarly not support laws that allow sex between two consenting adults before marriage, laws that allow women to file for divorce, or even laws that allow shops to open on Saturdays.¬†We may have certain ethics as a religious community, but our religious ethics should not our dictate civil ethics. To the contrary, as Jews benefitting from living in a free society, or civil ethics should be based on the democratic principle that, to paraphrase John Stuart Mill, the liberty of the individual should only be impended when it infringes on the liberties of others.¬†Lastly, if you believe marriage is not essential a fundamental human right essential to human dignity, I’d suggest you ask the opinion of a committed same-sex couple barred from wedding, or imagine how you might feel if prevented from marrying your life partner.
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