For more than two hundred years, we have long lived and been governed by words first encompassed in a January 1, 1802 letter of Thomas Jefferson to the Danbury Baptist Association in Connecticut. Jefferson contemplated that any act by the people’s legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof”, continuing “thus building a wall of separation between Church and State.”[1]
Continually referenced and referred to throughout history, Jefferson’s view were largely upheld in pivotal court rulings by the United States Supreme Court. These views infer that there is a separation of powers enabling religious institutions to operate, influence, and guide their respective communities. This enabled an absolute protection as established in the First Amendment to the United States Constitution and in the United States’ government’s Establishment and Free Exercise clauses. Such protections in theory would allow and enforce a common and consistent practice of uniform observances among religious institutions and the communities in which they serve.
However, modernity has shown that in fact this “wall” is only as solid and sound as the walls of the great Beit Hamikdash[2]. A fixture which for centuries stood strong and stood tall as the center of Jewish life, providing for a sense of community and ritual observances. However, despite its’ physical destruction short of our holy Kotel, still remains a guiding symbol centering our everyday existence as Jews.
Modernity has shown a greater influence of Constitutional government forcing an evolution in issues facing our society at large. We see a “bending” to the will of the people. Over time, there has been a deviation from long standing Jewish principles and norms as an accommodation to the views of the majority. This “bending” to the will of the people have directly impacted Jewish members of the LGBTQ+ community and American Jewry at large. Two such examples in today’s society relate to the legalization of same-sex marriage in the United States and the second, a recent move by the United States Government under the Trump Administration recognizing Judaism as a Nationality[3] in an effort to combat the rising tide of Anti-Semitism in the United States of America and around the globe.
In both instances, it appears that this separation of Church and State is not independent nor exclusive of one another but in fact, remain largely influenced by the other, ultimately leading to an evolution of views and perspectives by both Government and Religious institutions alike acquiescing to progressive views of the larger majority throughout the diaspora.
Despite this perceived separation, everyday Jews and other American citizens alike, enter institutions of our Government’s Judiciary in rooms personifying the idea “In G-d We Trust” and affirm to tell the truth, “so help me G-d”; the very places where legislative and lawful matters of State are interpreted, enforced and applied to matters of dispute, we see this interplay.
“Churches” are a modality that enable us to carry forward age-old traditions and teachings of both oral and written law, passed on from generation to generation providing guidance and a framework for an optimal and holy way of living our best and most virtuous lives while honoring our ancestors and acknowledging a divine presence guiding and nurturing our souls.
In contrast, the “State”, our governing body, brings together a culmination of individuals elected to public office to represent and legislate as zealous advocates of the people. In doing so, they combine their own sense of fairness through a lense colored by their experiences and the communities in which they serve, including principles often rooted in and adopted through their affiliations with religious institutions.
In October 1985, the Central Conference of American Rabbis[4] published a contemporary responsa on Homosexual Marriage[5], responding to the question “May a Rabbi officiate at the ‘marriage’ of two homosexuals?” In the very first line of their responsa, CCAR states “The attitude of our tradition and of Reform Judaism toward homosexuals in clear” and provides the rationale that while “The Resolution of the Central Conference of American Rabbis on homosexuality deals exclusively with the civil rights and civil liberties of homosexuals and seeks to protect them from discrimination, it does not, however understand it to be an alternative lifestyle which is religiously condoned.” Ultimately, CCAR’s position was that a Rabbi cannot participate or officiate a marriage between two homosexuals.
In March 1996, at the 107th Annual Convention of the Central Conference of American Rabbis a second resolution was adopted on the subject of same-sex marriage.[6] This resolution invalidated their earlier resolution citing a 1993 position by the Union of American Hebrew Congregations[7] (aka the Union for Reform Judaism) that “committed lesbian and gay couples are denied benefits routinely accorded to married heterosexual couples” and ultimately resolved that CCAR now “support the right of gay and lesbian couples to share fully and equally in the rights of civil marriage, and oppose governmental efforts to ban gay and lesbian marriage, finding that it is a matter of civil law, and is separate from the question of Rabbinic officiation at such marriages.”
However, in 1997, beginning with the state of Hawaii, and subsequent laws enacted by many other states thereafter, in 2011 President Barack Obama declared DOMA[8] unconstitutional resulting in the State of New York moving to legalize same sex marriage and then the states of Washington, Maine and Maryland followed shortly thereafter in 2012. Ultimately, in 2015 as a direct result of a Supreme Court ruling in the case of Obergefell v. Hodges[9], same-sex marriage became legal in all 50 states through the United States of America.
Continually referenced and referred to throughout history, Jefferson’s view were largely upheld in pivotal court rulings by the United States Supreme Court. These views infer that there is a separation of powers enabling religious institutions to operate, influence, and guide their respective communities. This enabled an absolute protection as established in the First Amendment to the United States Constitution and in the United States’ government’s Establishment and Free Exercise clauses. Such protections in theory would allow and enforce a common and consistent practice of uniform observances among religious institutions and the communities in which they serve.
However, modernity has shown that in fact this “wall” is only as solid and sound as the walls of the great Beit Hamikdash[2]. A fixture which for centuries stood strong and stood tall as the center of Jewish life, providing for a sense of community and ritual observances. However, despite its’ physical destruction short of our holy Kotel, still remains a guiding symbol centering our everyday existence as Jews.
Modernity has shown a greater influence of Constitutional government forcing an evolution in issues facing our society at large. We see a “bending” to the will of the people. Over time, there has been a deviation from long standing Jewish principles and norms as an accommodation to the views of the majority. This “bending” to the will of the people have directly impacted Jewish members of the LGBTQ+ community and American Jewry at large. Two such examples in today’s society relate to the legalization of same-sex marriage in the United States and the second, a recent move by the United States Government under the Trump Administration recognizing Judaism as a Nationality[3] in an effort to combat the rising tide of Anti-Semitism in the United States of America and around the globe.
In both instances, it appears that this separation of Church and State is not independent nor exclusive of one another but in fact, remain largely influenced by the other, ultimately leading to an evolution of views and perspectives by both Government and Religious institutions alike acquiescing to progressive views of the larger majority throughout the diaspora.
Despite this perceived separation, everyday Jews and other American citizens alike, enter institutions of our Government’s Judiciary in rooms personifying the idea “In G-d We Trust” and affirm to tell the truth, “so help me G-d”; the very places where legislative and lawful matters of State are interpreted, enforced and applied to matters of dispute, we see this interplay.
“Churches” are a modality that enable us to carry forward age-old traditions and teachings of both oral and written law, passed on from generation to generation providing guidance and a framework for an optimal and holy way of living our best and most virtuous lives while honoring our ancestors and acknowledging a divine presence guiding and nurturing our souls.
In contrast, the “State”, our governing body, brings together a culmination of individuals elected to public office to represent and legislate as zealous advocates of the people. In doing so, they combine their own sense of fairness through a lense colored by their experiences and the communities in which they serve, including principles often rooted in and adopted through their affiliations with religious institutions.
In October 1985, the Central Conference of American Rabbis[4] published a contemporary responsa on Homosexual Marriage[5], responding to the question “May a Rabbi officiate at the ‘marriage’ of two homosexuals?” In the very first line of their responsa, CCAR states “The attitude of our tradition and of Reform Judaism toward homosexuals in clear” and provides the rationale that while “The Resolution of the Central Conference of American Rabbis on homosexuality deals exclusively with the civil rights and civil liberties of homosexuals and seeks to protect them from discrimination, it does not, however understand it to be an alternative lifestyle which is religiously condoned.” Ultimately, CCAR’s position was that a Rabbi cannot participate or officiate a marriage between two homosexuals.
In March 1996, at the 107th Annual Convention of the Central Conference of American Rabbis a second resolution was adopted on the subject of same-sex marriage.[6] This resolution invalidated their earlier resolution citing a 1993 position by the Union of American Hebrew Congregations[7] (aka the Union for Reform Judaism) that “committed lesbian and gay couples are denied benefits routinely accorded to married heterosexual couples” and ultimately resolved that CCAR now “support the right of gay and lesbian couples to share fully and equally in the rights of civil marriage, and oppose governmental efforts to ban gay and lesbian marriage, finding that it is a matter of civil law, and is separate from the question of Rabbinic officiation at such marriages.”
However, in 1997, beginning with the state of Hawaii, and subsequent laws enacted by many other states thereafter, in 2011 President Barack Obama declared DOMA[8] unconstitutional resulting in the State of New York moving to legalize same sex marriage and then the states of Washington, Maine and Maryland followed shortly thereafter in 2012. Ultimately, in 2015 as a direct result of a Supreme Court ruling in the case of Obergefell v. Hodges[9], same-sex marriage became legal in all 50 states through the United States of America.
With this rising tide of change now in support of same-sex throughout the country, in 2014 CCAR issued a lengthy responsa[10], changing its stance on same-sex marriage. “In states where same-sex marriage and civil unions are legal by civil law, is it appropriate for Reform Rabbis to officiate at a ceremony of marriage of two Jews of same-sex, and to consider the union kiddushin” providing the rationale that “What has changed since 1869 – and 1990, and 1996 – is our recognition that same-sex unions, no less than opposite-sex unions, are a form of marriage. Given this recognition, it is clear to us that the same commitment to Justice, equality and egalitarianism applies in this case. Same-sex marriages therefore meet the long-standing Reform definition of kiddushin as a mutual and egalitarian marital covenant between two Jews.” In their responsa, CCAR now provide for a framework and consent to having Reform Rabbi’s officiate at same-sex marriage ceremonies.
CCAR continues to evolve its views and positions on other political matters of importance to the LGBTQ+ Jewish community. Most recently CCAR published a responsa where they examined the practice of Brit Milah and Circumcision of Transgender Females[11].
What is clear, as political debates progress through the “State” over time, religious institutions are forced to re-evaluate and redefine their views and perspectives on traditions of long-standing disputes that were once considered “resolved.”
In an April 2013, Times of Israel article discussing the results of a poll conducted by the Pew Research Center for the People and the Press[12] at Harvard University, US Jews were found to be among the most supportive of same-sex marriage with a majority of 76% in support of legalizing same-sex marriage, only 18% opposing the same and 8% having no position on the matter[13].
Jews have long supported the separation of Church and State as integral to protecting the religious freedom of all. In fact, many students of American Jewish life believe that the struggle to expand the separation of church and state in the United States as one of the greatest contributions Jews have rendered to the enlargement of American freedom. More than 200 years ago, Daniel Carroll of Maryland,[14] declared that “the rights of conscience are… of particular delicacy and will little bear the gentlest touch of governmental hand.”[15]
Recently, President Donald J. Trump and his administration issued a controversial Executive Order on Combating Anti-Semitism[16] to include discrimination against Jews as a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et. Seq.[17] thereby recognizing Judaism as not just a religion but a Nationality.[18]
For a community that has grappled among its various denominations with identifying and defining who is a Jew, and who is welcomed into the community, based upon one’s ancestry and lineage, and family structure, a logical question now before us is, what (if any) impact does such a government mandate redefining Judaism as a Nationality have on this particular question on “Who is a Jew?” and "Who belongs?"
With such an evolution in thinking by CCAR and other representative bodies of the Church and State over the years, one can argue that religious institutions are in fact not separate but rather largely influenced by politics of “the State.” While one might consider such changes in position circumstantial hypocrisy, Talmud provides us with an alternative rationale for this shift in thinking.
In examining Berakhot 37[19], the great Rabbis Gamliel[20], Akiva[21] and Eliezer[22] provide us a window into one possible justification for the changing of views and perspectives establishing new norms. The general principle that guides the resolution of halakhic [legal] disputes: In a dispute between an individual and the many, the halakha is in accordance with the opinion of the many.”[23]
While governing bodies like CCAR are leading the way in driving change there still are many denominations within our Jewish communities that approach these matters quite differently. Without acknowledging and responding to the rising tide of change in our communities and evolving our views accordingly, religious institutions I believe we will be at risk of seeing a departure from long rooted traditions and rituals practiced within our communities and as an integral part of our lives.
Rabbi Brian Denker is a native New Yorker, born and raised in Williamsburg, Brooklyn and was a Judaic Studies major at CUNY’s Queens College and received \Semicha through the Jewish Spiritual Leaders Institute (JSLI). Rabbi Denker spent much of his younger years curious and inspired by his Jewish heritage and greatly influenced by his family Rabbi. He worked in various leadership roles within the Jewish Community designing and leading youth and family programs — for his synagogue Congregation Mount Sinai, as well as Surprise Lake Camp, Young Judaea and the International March of a Living. Over the past 15 years, he has worked as the Vice President & Global Head of Growth, Innovation and Leadership with the research and management consulting firm Frost & Sullivan;. Additionally, he has worked over the past eight years with Jewish & Interfaith families as well as Same-Sex couples and members of the LGBTQ+ community throughout the New York metropolitan area (NYC, NJ, Long Island and CT) in creating and leading ritual life-cycle celebrations which become memories that last a lifetime. Rabbi Denker believes that our strength as a Jewish people is rooted not only in the gift of Torah, divinely inspired in our belief that the “Lord our G-d, the Lord is One” but through the flexibility, willingness and courage to integrate necessary changes while honoring age old traditions, teachings, and ritual practices as an inclusive and welcoming community to all. As an openly Gay Rabbi, Rabbi Denker is a leading voice and advocate encouraging policies and programs of greater diversity, acceptance, and inclusion. He is a member in good standing with the International Federation of Rabbis. You can email him at [email protected]
CCAR continues to evolve its views and positions on other political matters of importance to the LGBTQ+ Jewish community. Most recently CCAR published a responsa where they examined the practice of Brit Milah and Circumcision of Transgender Females[11].
What is clear, as political debates progress through the “State” over time, religious institutions are forced to re-evaluate and redefine their views and perspectives on traditions of long-standing disputes that were once considered “resolved.”
In an April 2013, Times of Israel article discussing the results of a poll conducted by the Pew Research Center for the People and the Press[12] at Harvard University, US Jews were found to be among the most supportive of same-sex marriage with a majority of 76% in support of legalizing same-sex marriage, only 18% opposing the same and 8% having no position on the matter[13].
Jews have long supported the separation of Church and State as integral to protecting the religious freedom of all. In fact, many students of American Jewish life believe that the struggle to expand the separation of church and state in the United States as one of the greatest contributions Jews have rendered to the enlargement of American freedom. More than 200 years ago, Daniel Carroll of Maryland,[14] declared that “the rights of conscience are… of particular delicacy and will little bear the gentlest touch of governmental hand.”[15]
Recently, President Donald J. Trump and his administration issued a controversial Executive Order on Combating Anti-Semitism[16] to include discrimination against Jews as a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et. Seq.[17] thereby recognizing Judaism as not just a religion but a Nationality.[18]
For a community that has grappled among its various denominations with identifying and defining who is a Jew, and who is welcomed into the community, based upon one’s ancestry and lineage, and family structure, a logical question now before us is, what (if any) impact does such a government mandate redefining Judaism as a Nationality have on this particular question on “Who is a Jew?” and "Who belongs?"
With such an evolution in thinking by CCAR and other representative bodies of the Church and State over the years, one can argue that religious institutions are in fact not separate but rather largely influenced by politics of “the State.” While one might consider such changes in position circumstantial hypocrisy, Talmud provides us with an alternative rationale for this shift in thinking.
In examining Berakhot 37[19], the great Rabbis Gamliel[20], Akiva[21] and Eliezer[22] provide us a window into one possible justification for the changing of views and perspectives establishing new norms. The general principle that guides the resolution of halakhic [legal] disputes: In a dispute between an individual and the many, the halakha is in accordance with the opinion of the many.”[23]
While governing bodies like CCAR are leading the way in driving change there still are many denominations within our Jewish communities that approach these matters quite differently. Without acknowledging and responding to the rising tide of change in our communities and evolving our views accordingly, religious institutions I believe we will be at risk of seeing a departure from long rooted traditions and rituals practiced within our communities and as an integral part of our lives.
Rabbi Brian Denker is a native New Yorker, born and raised in Williamsburg, Brooklyn and was a Judaic Studies major at CUNY’s Queens College and received \Semicha through the Jewish Spiritual Leaders Institute (JSLI). Rabbi Denker spent much of his younger years curious and inspired by his Jewish heritage and greatly influenced by his family Rabbi. He worked in various leadership roles within the Jewish Community designing and leading youth and family programs — for his synagogue Congregation Mount Sinai, as well as Surprise Lake Camp, Young Judaea and the International March of a Living. Over the past 15 years, he has worked as the Vice President & Global Head of Growth, Innovation and Leadership with the research and management consulting firm Frost & Sullivan;. Additionally, he has worked over the past eight years with Jewish & Interfaith families as well as Same-Sex couples and members of the LGBTQ+ community throughout the New York metropolitan area (NYC, NJ, Long Island and CT) in creating and leading ritual life-cycle celebrations which become memories that last a lifetime. Rabbi Denker believes that our strength as a Jewish people is rooted not only in the gift of Torah, divinely inspired in our belief that the “Lord our G-d, the Lord is One” but through the flexibility, willingness and courage to integrate necessary changes while honoring age old traditions, teachings, and ritual practices as an inclusive and welcoming community to all. As an openly Gay Rabbi, Rabbi Denker is a leading voice and advocate encouraging policies and programs of greater diversity, acceptance, and inclusion. He is a member in good standing with the International Federation of Rabbis. You can email him at [email protected]
[1] “Separation of Church and State in the United States” - https://en.wikipedia.org/w/index.php?title-Sepraration_of_church_and_state_in_the_United_Statesandoldid=936147545
[2] The Temple in Jerusalem was any of a series of structures which were located on the Temple Mount in the Old City of Jerusalem, the current site of the Dome of the Rock and Al-Aqsa Mosque. These successive temples stood at this location and functioned as a site of ancient Israelite and later Jewish worship.
[3] United States of America – Executive Order on Combating Anti-Semitism – 12/11/2019 https://www.whitehouse.gov/presidential-actions/executive-order-combating-anti-semitism
[4] The Central Conference of American Rabbis (CCAR) is the Reform Rabbinic leadership organization working to enrich and strengthen the Jewish community.
[5] “Contemporary American Reform Responsa 201. Homosexual Marriage” – Central Conference of American Rabbis (CCAR) – CCAR Responsa https://www.ccarnet.org/ccar-responsa/carr-297-298
[6] “Resolution Adopted by the CCAR on Gay and Lesbian Marriage” - Central Conference of American Rabbis (CCAR) – CCAR https://www.ccarnet.org/ccar-resolutions/on-gay-and-lesbian-marriage-1996
[7] Union for Reform Judaism, formerly (1873–2003) Union of American Hebrew Congregations, oldest American federation of Jewish congregations, which, since its founding (1873) in Cincinnati, Ohio, has sponsored many programs to strengthen Jewish congregations and promote Jewish education on every level. Its headquarters are in New York City.
[8] The Defense of Marriage Act (DOMA) was a United States federal law passed by the 104th United States Congress and signed into law by President Bill Clinton. It defined marriage for federal purposes as the union of one man and one woman and allowed states to refuse to recognize same-sex marriages granted under the laws of other states.
[9]Obergefell v. Hodges is a landmark civil rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
[10] “Same-Sex Marriage as Kiddushin” – Central Conference of American Rabbis (CCAR) – CCAR Responsa 5774.4 https://www.ccarnet.org/ccar-responsa/same-sex-marriage-kiddushin
[11] “Circumcision of a Transgender Female” – Central Conference of American Rabbis (CCAR) – CCAR Responsa
5769.6 - https://www.ccarnet.org/ccar-responsa/nyp-no-5769-6
5769.6 - https://www.ccarnet.org/ccar-responsa/nyp-no-5769-6
[12] The Pew Research Center for The People and the Press at Harvard University conducts numerous studies of public opinion in the US.
[13] “US Jews among the most supportive of gay marriage” by Haviv Rettig Gur 04/27/2013
https://www.timesofisrael.com/us-jews-among-the-most-supportive-of-gay-marriage
https://www.timesofisrael.com/us-jews-among-the-most-supportive-of-gay-marriage
[14] Daniel Carroll (July 22, 1730 – May 7, 1796) was an American politician and plantation owner from Maryland, considered one of the Founding Fathers of the United States.
[15] “Jewish Views on Religious Freedom” – Religious Action Center of Reform Judaism 03/11/2013 https://www.reform Judaism.org/jewish-views-religious-freedom
[16] United States of America – Executive Order on Combating Anti-Semitism – 12/11/2019
https://www.whitehouse.gov/presidential-actions/executive-order-combating-anti-semitism
https://www.whitehouse.gov/presidential-actions/executive-order-combating-anti-semitism
[17] Title VI, 42 U.S.C. § 2000d et seq., was enacted as part of the landmark Civil Rights Act of 1964. It prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.
[18] “Did President Trump Redefine Judaism as a Nationality?” – by Bethania Palma 12/13/2019
https://www.snopes.com/news/2019/12/13/trump-executive-order-judaism
https://www.snopes.com/news/2019/12/13/trump-executive-order-judaism
[19] Berakhot 37 “Rabban Gamliel does it again” https://www.myjewishlearning.com/article/berakhot-37
[20] Rabban Gamaliel was a leading authority in the Sanhedrin in the early first century CE.
https://en.wikipedia.org/wiki/Gamaliel
https://en.wikipedia.org/wiki/Gamaliel
[21] Akiva ben Yosef (also known as Rabbi Akiva), was a leading Jewish scholar and sage, a tanna, of the latter part of the first century and the beginning of the second century. Rabbi Akiva was a leading contributor to the Mishnah and to Midrash halakha. https://en.wikipedia.org/wiki/Rabbi_Akiva
[22] Eliezer ben Hurcanus or Hyrcanus was one of the most prominent Sages (tannaim) of the 1st and 2nd centuries in Judea, disciple of Rabban Yohanan ben Zakkai[. and colleague of Gamaliel II. He is the sixth most frequently mentioned sage in the Mishnah. https://en.wikipedia.org/wiki/Eliezer_ben_Hurcanus
[23] Berakhot 37 “Rabban Gamliel does it again” https://www.myjewishlearning.com/article/berakhot-37