I'm Gonna Have To Say Something About Prop 8

When I started this blog, I essentially explained its raison d’etre in the equivalent of three pages when I could have explained it one sentence. To wit: I am ostensibly a self-hating conservative who is forever trying to intellectually justify my conservative positions as exceptions to my imagined ingrained liberalism.

Prop 8 provides an illustration of said phenomenon.

As a believing Orthodox Jew, knowing what I know about the sources of Jewish Law and its legal system, I consider myself intellectually bound to believe in its truth.  I will not even try to argue with anyone who considers my views on Prop 8 to be homophobic; in today’s political climate, they probably are. I also personally believe there is no way to mitigate the Jewish legal prohibitions vis-a-vis homosexuality with any degree of intellectual honesty.  But that’s another discussion (see the last article below).

So I'll say this:

Other than the purely theological, there is no truly logical reason to morally oppose homosexual relations between consenting adults.

Anyone claiming otherwise is either intellectually dishonest or self-delusional.

So, again for the record, had I been in the voting booth in California, I would not have pulled the lever in either direction, for the simple reason that no salient non-theological argument has been proffered in its favor. I count myself to be on the side of Prop 8’s proponents (certainly, those who voted “no” would put me there, even if—or possibly because—I would have abstained).  However, the burden of proof of the proposition’s non-theological moral saliency is clearly on its proponents, and they have not come close to meeting it.

Below are four articles that illustrate just how far they are. (And, if you read Lisa Miller’s Newsweek article (fourth below), you’ll see how tenuous the theological argument is.)


An Orthodox Jewish religious perspective:
'MARRIED' AND THE MOB,  Rabbi Avi Shafran

It seems clearer than ever that gay activists are not, as was once thought, interested only on being left alone, or, as was later thought, on being granted the same privileges as others. They are fixated, in fact, on creating a society where traditional religious perspectives on homosexuality and marriage are regarded, in law and in social dialogue, as the equivalent of racial or ethnic bias.
The scenario of religious people - and institutions like churches, synagogues and mosques - being branded as bigoted simply for affirming deeply-held religious convictions is around the corner. And eventual prosecution of the same for voicing those convictions is only another corner or two away.

What began as a plea for "rights" is rapidly, and noisily, morphing into an assault on freedom of speech and conscience.

Jews who take their religious tradition seriously will not allow the shifting sands of societal mores to obscure the fact that the Torah forbids homosexual acts, and sanctions only the union of a man and a woman in matrimony. They know, further, that the Talmud and Midrash teach that a saving grace of human society throughout the ages has been its refusal to formalize unions between males.


A politically conservative “natural law” perspective:
California Proposition 8 and Natural Law Rights

Natural law morality guided by conscience preserves and strengthens those relationships and social bonds, builds trust, inhibits our selfishness. We need to regain an appreciation of the morality of natural law as the foundation for our law, both domestically and internationally, and the courts must self-police in recognizing the consequent inherent limitations on their powers, or the grand aspirations of the American Declaration will have come to naught.

The People of California need to reassert their natural law rights against a State Supreme Court that has disdained and disregarded them. They need to overrule the Court’s decision to redefine marriage according to a morality that sees only libertine license as good, with no counterbalancing duties and responsibilities. A State, any State, is a poor substitute for responsible self-governance, self-control, and self-discipline. Nothing less than freedom, true freedom, is at stake, for our children and grandchildren, if not for ourselves.

Please, California, enact Proposition 8. Much more than marriage is at stake, and not just on your fair shores. Help protect our children’s and grandchildren’s marriages, and in doing so, help us take back our Constitution from those who were sworn to preserve it but have been its greatest undoing.


A secular law perspective:
Democracy, Religion and Proposition 8
Geoffrey R. Stone

Does Proposition 8 violate the Constitution? There are several arguments one might make for this position. One might argue that Proposition 8 discriminates against gays and lesbians in violation of the Equal Protection Clause. One might argue that Proposition 8 unconstitutionally limits the fundamental right to marry. One might argue that Proposition 8 violates the separation of church and state. It is this last argument that interests me.

Laws that violate the separation of church and state usually take one of two forms. Either they discriminate against certain religions (“Jews may not serve as jurors”), or they endorse particular religions (“school children must recite the Lord’s Prayer”). Proposition 8 does not violate the principle of separation of church and state in either of these ways. It neither restricts religious freedom nor endorses religious expression.

What it does do, however, is to enact into law a particular religious belief. Indeed, despite invocations of tradition, morality and family values, it seems clear that the only honest explanation for Proposition 8 is religion.
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Proposition 8 was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs. This is a serious threat to a free society committed to the principle of separation of church and state.


And, the best argument against Prop 8 from the religious angle, which shows how tenuous even the 
theological argument might be.

Our Mutual Joy
Lisa Miller

Let's try for a minute to take the religious conservatives at their word and define marriage as the Bible does. Shall we look to Abraham, the great patriarch, who slept with his servant when he discovered his beloved wife Sarah was infertile? Or to Jacob, who fathered children with four different women (two sisters and their servants)? Abraham, Jacob, David, Solomon and the kings of Judah and Israel—all these fathers and heroes were polygamists. The New Testament model of marriage is hardly better. Jesus himself was single and preached an indifference to earthly attachments—especially family. The apostle Paul (also single) regarded marriage as an act of last resort for those unable to contain their animal lust. "It is better to marry than to burn with passion," says the apostle, in one of the most lukewarm endorsements of a treasured institution ever uttered. Would any contemporary heterosexual married couple—who likely woke up on their wedding day harboring some optimistic and newfangled ideas about gender equality and romantic love—turn to the Bible as a how-to script?