Posts Tagged 'Homosexuality'

About The Indiana Law Allowing Business Owners to Refuse to Aid A Gay Wedding

A new law scheduled to go into effect in the state of Indiana in July, the “Religious Freedom Restoration Act”, is supposedly intended to protect the freedom of religious faith of the people of the state. However, it has met with harsh criticism as it is seen as a license to discriminate against LGBT people. The law is not intended to allow discrimination against gay people simply for being gay, but will apparently allow business owners to refuse to serve gay couples seeking to marry – for instance wedding hall owners opposed to such an event held on their property.

According to the New York Times’ analysis, the law allows companies and individuals to refuse to provide service that will place a “substantial burden” on their religious beliefs. Should their refusal land them in court, the judge would have to balance the burden upon their religious beliefs and the state’s desire to prevent discrimination. CNN’s legal analyst believes that the law will not allow people to decline to serve individual gay persons, but will probably enable people to refuse to aid in any way the celebration of a gay wedding. The issue has already drawn furious protests by the gay community, and condemnations from various activists and politicians (such as Hilary Clinton). The Governor of Connecticut has promised to sign an order banning trips subsidized by his stte to Indiana, as has the Mayor of Seattle. Apple CEO Tim Cook wrote an article decrying the bill, and Ashton Kutcher and Miley Cyrus are tweeting with the hashtag #boycottindiana.

Israeli readers might recall a similar case to come before the Israeli bench. In 2012 Judge Dorit Finestein imposed a 60,000 ILS fine on the guesthouse at Moshav Yad HaShmona, which has refused to hold the wedding of Tal Yaacobovitch and Yael Biran due to their sexual orientation. “The Judge noted that the object of the fine was not only to compensate the couple, but also to educate the public at large in values of equality and human dignity” (from an article by Ilan Lior in Haaretz.) This case had to do with a wedding hall belonging to Messianic Jews, whose faith stood in opposition to the nuptials in question.

Would we accept a wedding hall owner unwilling to rent his hall to a wedding of Blacks/Mizrachis/Jews? Of course not, and in Israel, like in many democracies around the world, there are many laws prohibiting discrimination on the basis of race. What about a wedding hall owner who won’t rent his hall to an interracial wedding? Of course, those same laws will prohibit that as well. And what of a hall owner who won’t rent his hall to religious people? Or secular ones? I think we would not accept such a reality.

So ostensibly, we are unwilling to countenance discrimination against service seekers. But the matter is not so simple. I think none of us will insist that a private service provider (not a public official or public service) has no right, under any circumstance, to refuse service to a customer. Thus, for example, there have been several cases in which clergymen (not business owners) have been sued for their refusal to marry gay couple – which is completely absurd in my opinion. Must a lawyer accept any client, even those he believes to be immoral criminals? Must a plastic surgeon provide breast enlargement to any woman who shows up at his clinic? How can we force a private person to take on a client whom he or she not only doesn’t want to serve, but ones they believe they must not serve?

But let’s focus on halls and weddings. Consider the following example:

You own a wedding hall. You’re an ultra-orthodox Jew. You have a religious problem with renting the hall to Jews on Friday nights and Saturdays, because you believe that Jews are obligated to keep the Sabbath, and you are unwilling to aid in what to you is a transgression. Likewise, you won’t rent the hall to Jews who want non-kosher food catered. You have no problem renting the hall to non-Jews on the weekends or having non-Jews have non-kosher food catered, and of course you have no problem renting to Jews in general.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You’re an atheist and a feminist. You have an ideological problem with renting your hall to religious folks who practice gender separation. You don’t want your hall to feature men sitting apart from women, or only male waiters to serve men and only female waiters to serve women. You have no problem with renting the hall to religious people, but not if they practice such separation. The same goes for religious weddings of minors, age 17, let alone 14. That will not happen in your hall.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You’re vegetarians, or maybe vegans. You don’t offer catering service in your hall, and you allow your clients to hire outside catering services. Although you strenuously object to eating meat, you realize that most people are meat eaters, and are willing to have couples marry in your hall with catering that includes meat. One day a couple comes in wishing to rent the hall. While talking with them you realize that they intend to have catering that serves lobsters. In order for the lobsters to be fresh (and for the added spectacle), they intend to place a giant aquarium in the hall in which the living lobsters will swim, until taken out and thrown live into vats of boiling water. This is too much for you, and you inform the couple that they cannot rent your hall.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. For political and moral reasons, you strenuously object to Israel’s control of the West Bank. You boycott products from the settlements, and won’t rent your hall to people who live in settlements.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You strenuously object to marriage between Jews and non-Jews. For you it’s really not a racial matter, but one of religion and tradition. It is important to you to prevent what you view as a destructive process of diluting and even destroying the Jewish people. You won’t rent your hall for weddings between Jews and non-Jews.

Should you be allowed to operate this way?

Not all of these examples are matching, and we should distinguish them from one another. There is a difference between discriminating against customers on the basis of their race/ethnicity/religion and discriminating against customers on the basis of their actions. The difference stems from the fact that a person’s origin or religion are a deep and essential part of their identity, whereas their actions are not usually a part of their identity. A large part of the human rights discourse is based on what we perceive as sources of identity and deep meaning in our lives. The freedom of expression, for instance, is important not only for the existence of a healthy society with a plurality of opinions and a capacity for self-criticism, but also because one’s ability to express one’s opinions is a central part of one’s self-perception, and one’s dignity. Likewise the freedom of religion and conscience, or most simply put the physical wholeness of our body.

Therefore refusing to rent a hall to someone who boils lobsters alive is not tantamount to refusing to rent a hall to Jews. Likewise, one’s desire to keep one’s hall from hosting a violation of the Sabbath, or the serving of non-kosher food, is not an unfair discrimination, but a protection of one’s religious faith.

And what of a boycott against settlers? Here the matter is more complex. There are people for whom living in Judea and Samaria is a deep part of their identity. They’re not just located in the occupied territories – they are settlers. This is how they perceive themselves; it is a central part of their identity. They view it as a high value and take pride in it. On the other hand, it seems to me that the settler identity is weaker than a Jewish or LGBT one. This is an intermediate case. Is it permissible to discriminate against settlers and refuse to do business with them? When the Boycott Law was passed in Israel, banning calls for boycott based on place of residence, many (myself included) saw it as a base and undemocratic attempt to legitimately oppose the occupation. It seems that many people believe that a private business owner (or consumer) should be allowed to boycott settlers just for being settlers.

Now undoubtedly, homosexuality is a matter of identity, and not of sexual activity. Sexual orientation is considered nowadays as a deep element of a person’s identity, and therefore a central dimension of one’s self-perception and basic dignity. This is why we take such offense at discrimination against LGBT’s – because the logic at the foundation of the human rights discourse leads us to the conclusion that they have equal rights exactly for who they are.

Is it therefore wrong for a private person to refuse to provide a service for gays wishing to get married? Let’s say that person is willing to rent his or her hall for a gay or lesbian person’s birthday party. They have no problem with homosexuality in and of itself – they are not homophobes. They question is must we force such a person to rent their hall specifically for a same-sex marriage, which is to say for the performance of an act they hold to be immoral/contrary to the commandments of God.

Let us compare it to a person unwilling to rent their hall for a wedding with gender separation. By so doing he is basically banning from his business all ultra-orthodox people and most national-religious ones. Is this permissible? We may think it isn’t, and that we should force him. Perhaps we also think same-sex weddings shouldn’t be refused, and that we should force individuals for whom this is against their world-view to rent their hall.

On the other hand, perhaps we think one must not refuse a LGBT wedding but may refuse an ultra-orthodox one. I think that is a legitimate stance, but we must understand that it stems from a particular liberal conception and carries a particular liberal agenda. This is about furthering an agenda based upon the growing discourse of rights, with the position being that the point the discourse of rights has reached in our times is the point to which the law must move. One may refuse to host an ultra-orthodox wedding because they harm the rights of women, and one must not refuse to host a LGBT wedding because their right to marry must not be abridged.

From another perspective one may say that what we have in the last example is an agenda of secularizing the public sphere, like the law forbidding covering one’s face with a burqa in France or the law banning the construction of mosque turrets in Switzerland, that is, a law that consciously overrides a certain religious obligation (in this case the prohibition on same-sex marriage) in order to promote a more secular public sphere.

This is not my position, but as mentioned above I believe it’s a legitimate position. What I’d like to stress is that it is a position. Meaning that there is ideological baggage (let’s say, one promoting liberal democracy and/or secularism). Therefore to the same extent we must recognize that there is nothing obviously true here, and that there can – and should – be public debate between this position and opposing ones.

Rejecting religious or LGBT customers because the nature of the weddings they hold is immoral in the opinion of the hall owner will most likely be perceived by the rejected as a rejection of their identity, and is therefore a very harsh act. However, it can definitely be argued that the rejection is not of religious or LGBT people, but only of the specific act they commit in marriage. Of course this act too reaches far deeper into their identity than eating live-boiled lobsters does into the identity of the diner. This is a far more essential expression of “who they are.” And yet, it can be argued that this still doesn’t turn the rejection of their wedding into a rejection of them. The wedding hall owner can claim to have no problem with observant people or gays, but only with the way they marry.

The context also matters here. If the group discriminated against is a small, weak one which is ostracized by most of society, there is cause for the law to protect it. For instance, if LGBT people were rejected by 90% of wedding halls, and had no reasonable option of holding their weddings, there would be reason for a law to protect them and force hall owners to rent them their halls. I believe the reality is opposite. Hall owners unwilling to rent their halls to same-sex weddings are a minority, and the moral-religious position they hold is becoming less and less accepted in the Western society of our time. See above for a very partial list of those protesting the new law in Indiana to get a picture of the forces that are up against its defenders.

I believe that LGBT people have the right to get married, that is to say, that this is a basic right, and therefore I thing the state should be required to allow same-sex marriage by law (I hope to write about the underlying principles of this sometime). On the other hand, I think that under current conditions, where there is no shortage of halls and officiators who would be glad to host or conduct a same-sex wedding, private business owners should be allowed to retain their beliefs and refuse to hold same-sex weddings in their businesses. This is because society has an interest and an obligation to allow individuals to freely preserve and express their religious and/or moral convictions.

This issue isn’t simple. It involves religion and politics, private morals and legal ruling. It also mixes a certain social perception with a certain political culture, and also a contextual analysis of the facts on the ground. The law in Indiana which allows private people to refuse to take part, as business owners, in a same-sex wedding, defends their private notion of what is good, and this is important. It does not relieve them of the need to justify it, if required, in a court of law. It also does not prevent protests, and even boycotts, by the general public against them. I find this to be a proper balance.

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(I Thank Yael Peled for her enlightening comments on a draft of this article. Of course, all opinions and errors are mine.)

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Body and Sexuality in the New Religious Zionist Discourse – About the book

Guf U’miniut Ba’Siach Ha’Tzioni-Ha’Dati He’Hadash ("Body and Sexuality in the New Religious Zionist Discourse") by Yakir Englander and Avi Sagi, Hartman Institute and Keter Publishing, 2013, 267 pp.

 

In the waning years of the 19th century, Austrian psychiatrist Richard von Krafft-Ebbing wrote in his Textbook of Insanity that

[Sexual] anomalies are very important elementary disturbances, since upon the nature of sexual sensibility the mental individuality in greater part depends; especially does it affect ethic, aesthetic, and social feeling and action.

Krafft-Ebbing thus expressed a new understanding: our sexual desires were no longer solely natural expressions of the body, certainly not wicked agents of the devil. Instead, they became basic pillars of our personality ¬ that is, of modern human individuality.

In discussing "The Body and Sexuality in the New Religious Zionist Discourse" it must be remembered, therefore, that sexuality itself is a modern category, which became popular in 19th-century Europe, when it became a definition not only for practices but also of personality. Accordingly, the term "sexuality" was now given various prefixes like "hetero-," "homo-," "auto-". Nowadays it is important to look at the broad scope of the literature intended to help bring about improvement in our sexual lives, a literature that started to become widely available in the 1960s. If our sexual pleasure is such a central part of ourselves, improving it, as a central part of our self-improvement project, seems also to be obvious.

The new book by Prof. Avi Sagi and Dr. Yakir Englander is very aware of this historical background, and it tries to focus upon and characterize the current historical moment experienced by the religious Zionist public. It is successful in doing so on a number of levels and it provides important reference points for any future discussion on the subject.

As a field of research, Sagi and Englander have focused on the discourse in terms of Halakhah (traditional religious law), especially as it appears on responsa sites on the Internet. This is a public discourse by its very nature, as its rulings are presumed to reach every observer of rabbinical law and to shape their conduct. Thus they are also intended to create a homogenous "public" of a God-fearing community.

The authors have chosen to examine various models in which it is possible to find direct conflicts between the modern and the halakhic perceptions of sexuality. They have specifically examined the issues of male and female masturbation and homosexuality. The analysis they propose vis-a-vis the discourse in Halakha concerning the prohibition of male masturbation is fascinating.

the book coverThe authors bring evidence that the responsa are no longer truly halakhic in nature and have instead taken on the character of "pastoral counseling" – i.e., of spiritual guidance intended to shepherd individuals from the flock of the devout toward inner repair and spiritual perfection. This is an entirely different genre of dialogue, as the rabbi here comes across not as an arbiter of Halakha, but rather as a guide to the inner psyche, who offers an ethical path, the purpose of which is redemption of the soul.

While in premodern times it was possible to find within Halakha a formal discourse that ruled in accordance with an interpretation of tradition, the authors find that today the invocation of Halakha is marginal, and that most discussion of the question of male masturbation is in the realm of values and ethics. Thus, for example, rabbis endeavor to console the questioner who has failed and sinned, to strengthen his spirit,

imbue him with motivation to overcome his urges and present him with the choice between courageous resistance to Western trends and loyalty to what they perceive as "the tradition of ancestral Israel" which commands abstinence from self-pleasure.

The rabbi presents himself as a meta-figure with respect to Halakha, speaking in the name of a Jewish metaphysic that is not formulated with traditional tools, but rather is assumed to be in "the spirit of Halakha." He is no longer an arbiter of the legal canon, but rather a spiritual guide who knows the true path to redemption of the soul. The sinner’s confession, which is central to this discourse, is answered by rabbinical counsel, and the point to which the discourse relates shifts from the forbidden deed (masturbation), to forbidden passion and forbidden emotion (sexual craving, despair).

In so doing, the rabbis of religious Zionism, Sagi and Englander stress, are accepting the assumptions behind modern individuality. They espouse spiritual guidance that is aimed first and foremost not at maintaining divine law, but rather at redemption of the self, rectification and achievement of personal perfection and satisfaction. Accordingly, modern "sexuality" discourse also has become for the rabbis a theological starting point, and sexuality is understood as a constitutive element of an individual’s identity. Thus, prohibitions rooted in halakhic tradition exceed their formal status and become tremendous obstacles along the individual’s path to creating an ideal ("Torah-observant" or "believing") self-identity.

The modern perception of sexuality is also reflected in the stance toward homosexuality. Since the sexual act has essentially become a sexual identity, the arbiters of Halakha face three possibilities: a) to grapple with established legal tradition and permit whatever is possible in that framework (in the case of lesbianism, this is much easier); b) to change the Jewish attitude toward sexual abstinence and enjoin persons with these tendencies to abstain from sex all their lives; and c) to argue that homosexual tendencies are not natural and can be rectified and changed.

In accordance with the pastoral discourse that has replaced halakhic discourse, the authors of the book in question offer a wealth of rulings instructing men and women with same-sex tendencies, who are seeking advice, to change or abstain from sexual relations. Here too the discussion moves from Halakha to meta-Halakha, in the direction of fomenting an ethical discourse that shapes a new, pure Jew.

The perception of sexuality as raw material used in creating the religious self is also manifested in rabbinical discussion surrounding the issue of female masturbation.

In contrast to strictures relating to men in this regard, there is no express Halakhic prohibition on female masturbation Halakha. As one might have expected, Sagi and Englander find pastoral discourse on this subject too. The discourse here directs women toward a certain type of sexuality that from the rabbis’ perspective, even if not according to Halakha(!), is kosher and positive.

Following this, they go on to examine the aggregate of the perceptions of female sexuality in the new religious Zionist discourse. Their main insight is that there is no real connection between the image of the women about whom the rabbinical arbiters speak and women as living beings walking upon the face of the earth. The book presents various rulings indicating that, in the eyes of the arbiters, a woman has a fixed and simple essence: She is an introverted, passive, delicate and sensitive creature, whose sexual passion is dependent on emotion and love.

Thus, for example, there is a perception that women are not sexually aroused upon seeing an exposed male body, and therefore men are not required to cover themselves for the sake of "modesty." Even when the women who send in questions to the Internet sites inform the rabbis that they too have urges and desires, the rabbis silence them and insist that they do not, that there is in actual fact no such thing.

As Sagi and Englander write, the arbiters talk about women, not with them. This whole issue leads the authors to emphasize the male hegemony in the realm of rabbinical rulings. Ostensibly, this is obvious and self-evident, but this book stresses the alienation deriving from the fact that only men deliberate about Halakha. This creates a contradiction between the real woman and the ideal woman; the real woman is negated or else required to undergo a transformative journey to become that imaginary ideal.

Once again, pastoral discourse constitutes an arena in which the woman who observes Halakha must grapple with her image and aspirations. (In this context mention should be made of the religious Zionist organization Beit Hillel, which is promoting women – though at present tentatively and in a minor way – as rabbinical arbiters. Reading this book could contribute to an understanding of the challenges involved in this move, as well as of the huge promise inherent in it.)

The new sexuality discourse reveals the way religious Zionism is dealing with modernity at the present time. The authors take care to emphasize and exemplify the fact that there is nothing deterministic in the way this discussion has crystallized: A very different discourse could quite easily have developed, one that uses formal halakhic strictures to make it easier for the religiously observant to deal with modern sexuality.

"The Body and Sexuality in the New Religious Zionist Discourse" is full of insight, but the editing is inadequate and it is possible that readers will get lost in a maze of quotations and footnotes. It is evident that the work benefits greatly from the voice of Avi Sagi, one of the most profound thinkers in contemporary Judaism. The reader will findmany diagnoses that are fully developed in Sagi’s other books, while here they illuminate the research details and emphasize their importance.

The authors conclude with an expression of concern about the future. While Religious Zionism developed primarily with an inclusive view toward modernity, it has not succeeded in developing a halakhic discourse that has responded to its challenges. Instead, part of religious Zionish has been retreating and shutting itself up behind ideals that are divorced from reality:

In this way a historic movement, which had perceived itself as a mediating agent within Israeli society […] has developed antibodies to this mediation. The sting of this process is manifested first and foremost against itself; against the real body and sexuality, and against real women and men.

We can only hope that the other parts of religious Zionism will have the sense to embrace reality, and never let go.

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Published in Hebrew in Haaretz, 7.8.13


Tomer Persico

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