The Volokh Conspiracy

Strange that his conclusions on faith based voting actions would support a political position of himself and most of his readers.

Very strange how that worked out.

My point was not that religious beliefs compel supporting same-sex marriage. It was that we often support civil laws that permit what our religious beliefs preclude. (Malicious but true gossip, for example.)

It was that we often support civil laws that permit what our religious beliefs preclude.

Thank God.

Given the power of the Zionists in this country, if they imposed Jewish law here, I wouldn't be able to--How do the Zionists say it?--"shtup" my wife for, like, two weeks every month. And she is one hot shiksa. No wonder the Jews the Zionists are so hostile to everyone!

And pardon me if I got the Yiddishism wrong. I only recently found out the Mosaic law does not condemn "boychicks." And don't me started on "pissers."

(While I'm at it, why is Manischewitz so sweet? Do the rebbes make you guys do that or something?)

Happyshooter: And...?

I think I said it very well. The rules of his faith conflicted with the political position of he and his friends, so he argued that his faith should not influence his political position.

He then ran with that to: 'I am both a good member of my faith and a good liberal, at the same time!'.

I disagree with the logic of his results.

Just to clarify my personal beliefs --- I am more on the moderate / liberal end of Judaism, and so I don't condemn homosexual activity. But my argument was addressed to Jews who do.

Mr. Adelstein is right; there's a large difference between MY opinions and OUR laws, especially when those opinions are based on religion.

Judaism divides laws into those based on wisdom and those based on instruction, the word of G-d. Laws based on wisdom are those that any reasonable culture would eventually enact; only Jews are obligated to follow those based on instruction. It is debatable which category the marriage laws belong in, therefore it is appropriate to base your vote on what you believe is best for American law, rather than what aligns best with Jewish law.

My answer to wm13's question is essentially the same as Ben P's. Religious law governs particular religious communities. But America is a diverse country where people of different religious communities and non-religious communities and no communities must live together in a civil society. To accomplish this, we should restrict freedom as little as possible. And that position as a matter of civil law does not conflict with the position that we should not always exercise this freedom as a matter of religious law or personal ethics.

God said adultery is a sin. Voting to allow people, two men, or one man/one woman, or two women, to commit the sin is a sin.

God said idolatry is a sin, too. Would voting to permit non-Christians to pray according to their beliefs be a sin?

Happyshooter,

In Jewish law, there are different laws for Jews and Gentiles. That doesn't mean Gentiles are inferior, just that Jews have taken on more responsibility. If a Gentile wants to take on the responsibility, he can convert.

Allowing people to have the freedom to commit an action or not commit an action is not the same as allowing them to commit the action. Besides, we do not allow or disallow people to do things here. People can do whatever they want, they just get punished for some things. In reality, I am free to break my neighbor's window, but I may get punished for it. So your argument there is moot.

Things which deprive others of their life, liberty, or property are different from actions that do not, but with which we disagree.

I agree that civil marriage is a legal contract that offers protections to the participants. It is different from a religious marriage. The government should not offer this contract to some couples, and not others. If someone can give me an argument why a same-sex couple should not have access to the same legal protections as a heterosexual couple based on a legal argument and not on religious authority, I would love to hear it.

BruceM: But the Code of Canon Law doesn't allow me to kill myself. Which presents a conundrum for people who think like like you.

Hoosier:

"I wouldn't be able to--How do the Zionists Orthodox say it?--"shtup" my wife for, like, two weeks every month."

You don't know half of it. Ask about the sheet with the hole.

This "voting to allow" idea is the key insight into the mindset in which everything is prohibited except to the extent the government permits it.

Very well put. For those of that consider human freedom as unbounded except for the small slice we surrender to the state such arguments always come off wrong. Government authority is limited to those things required for the orderly pursuit of liberty.

I think part of the miscommunication with HappyShooter is the Christian assumption that Judaism is just Christianity without Jesus. Nothing could be farther from the truth. The whole way of looking at religious obligations, sin, etc are completely different. Christianity is a universalist faith, so when they say something is a sin, its a sin for everyone whether they are Christians or not. Judaism - not so much.

A. Zarkov--The sheet with the hole is a myth, isn't it?

Not that I could prove that it is. We have an Orthodox community here in town, but I don't spy through their bedroom windows; my ladder doesn't reach that high.

I've seen the sex-sheet in movies, and with re: to non-Jews. (E.g., Like Water for Chocolate.) I couldn't say about other cultures, but I have read that Jews don't have anything to do with that stuff. Jews celebrate sexuality within marriage if I'm not mistaken.

So do I, but the Church here in the US has been shaped by the Irish. (My people, to be frank.) So it has been rather more ascetic than Catholicism elsewhere, especially when it comes to what the Papal Bull Quam singulari calls "nookie." (Or is that my buddy from Skokie? Well, one or the other.)

The notion that it is a sin to vote to license what your religion considers a sin is a dangerous idea, and not necessarily biblical. And in fact this notion — if it’s a sin, it must not be legal or licensed — is pregnant with tyrannical anti-liberty implications.

One reason why I study religion so much is that it was religious disputes and the need to deal with religious pluralism that eventually led to classical notions of liberty and equality. And it was religious dissidents who especially did the groundbreaking work in arguing for a free and equal society.

The Jews, until modern Israel was established, were always dissidents in dominant cultures, and hence never had an opporturnity to impose their religious morals on society as a whole. As such it shouldn’t surprise us that Israel has a strong secular culture and Jewish figures in America have been on the forfront of arguing for religious liberty, secular government and seem to have little concern about forcing their religious tenets on the rest of the culture. Jewish people, by in large, want to freedom to eat Kosher; they don’t want to impose Kosher on the rest of society. And that’s the way it should be with all sectarian religious values, in my opinion.

Clearly, not every sin should lead to a civil penalty. However, there is a wide chasm between tolerating something and actively promoting it. If your religious group opposes certain behavior, you should join your fellow believers in that opposition. Either that or start a new group that agrees with you.

There is a distinction to be made here. For a religious Jew, I can't see how it is It a sin to vote for a government policy to allow or not punish gossip. That's just making a distinction between personal behavior and how you vote for the government to use force. But that's different than voting for a government policy which openly encourages gossip, officially recognizes gossip as just as legitimate as other forms of speech, has the effect of causing schoolkids to be taught that gossip is just as good as other speech, and has the effect of labeling anyone who doesn't agree gossip is just as good as any other speech as a bigot. In this case you are participating in using government force to go against (according to your religion) the wishes of God.

That is, I would have to say, a view common among oppressed minorities ruled by foreigners, but perhaps unsuitable for free people who govern themselves.

Or perhaps a free people that live in a pluralistic society in which there are disparate and often contradictory value systems. It is perfectly rational to desire an end to these interminable culture wars in exchange for surrendering my claims to moralizing legislation.

If fear of secular authorities [who have prohibited gossip] prevents other Jews from committing it [gossip] that can only be a good thing

Absolutely not. Insofar as a Jew follow this law only out of fear for the worldly consequences he has been stripped of the opportunity to make a meaningful spiritual decision. I don't applaud my dog when he doesn't shit on the rug because he is motivated only by the selfish desire not to be punished. Similarly, I don't applaud humans that follow good laws only out of selfish desire to avoid jail -- they are merely looking out for number one not exercising moral judgment.

"Or perhaps a free people that live in a pluralistic society in which there are disparate and often contradictory value systems."

That would be a very libertarian system, not at all like what we have now. What we have now is a system in which the elite has decided, for reasons not entirely clear to me, that sexual liberty is precious, but that other liberties (e.g., the freedom to take drugs, or eat foie gras, or smoke cigarettes) are not. Although I am, by most measures, a member of the elite, i.e., a graduate of a top ten law school with a six figure income, I don't really share this elite value system. I would rather be able to smoke cigarettes in a bar, with the proprietor's permission, than marry someone of the same sex, but society is determined to impose a different set of values on me.

One thing that seems relevant, but which Bruce Adelstein does not mention is that Jewish law is not really the same as the list of commandments in the Torah, it is a living (and rarely, a changing) tradition.

Halakha is the result of a very long tradition of interpretation and commentary on the Torah -- or more realistically, a long tradition of interpretation and commentary on an older tradition of interpretation and commentary on the Torah. The body of the law really only comes alive through the combination and recombination of the pieces of God's words. Throughout all these interpretation there have, of course, been disagreements, and remarkably, they are preserved all the way back to the Mishna, and later the Talmud. There are little tidbits in the texts sort of like little dissenting opinions, and like dissenting opinions, they sometimes become the majority opinion.

One argument, I think, for keeping Jewish and Civil law separate is to prevent Civil law from inappropriately constraining the living tradition of Jewish law. Now, if one is trying to appeal to Orthodox Jews, this might not be very effective, because they would not tend to argue that the evolution of Jewish law in the other movements has been to constrained. But even if it is ineffective, I think the argument is still legitimate.

The other argument for keeping Jewish and Civil law separate is that after a certain point of convergence, you either need no more convergence or total convergence, nothing in between. Jewish law itself demands that it be broken under certain circumstances. Civil law would have to recognize that as valid.

jim47 notes that "Jewish law is not really the same as the list of commandments in the Torah, it is a living (and rarely, a changing) tradition."

I agree wholeheartedly, and a good chunk of my blog posts are on this precise point. (See my post on the Daughters of Zelophehad for an odd example. But I was primarily addressing this argument to Jews who believe that homosexual sex, and thus presumably same-sex marriage, violates halacha.

"We should not oppose civil same-sex marriage merely because it differs from halacha." (Emphasis added)

I suppose this "merely" means that observant Jews could oppose same-sex marriage for all sorts of "secular" reasons, if they have such reasons, just not because it violates Jewish law.

Now I'm going out for a cheeseburger.

Ariel, Scalia is speaking, as I understand, about his role as a judge. That is, as a Supreme Court justice, it is not within his proper role to make law with respect to abortion (because the federal Constitution is silent on the subject). I believe, though I could be wrong, that he would say that in his role as Catholic citizen, he would vote for an initiative that made abortion illegal, and that, other things being equal, he would vote for legislators who would vote to make abortion illegal. So I don't think he really agrees with Mr. Adelstein at all.

Bruce,

California law, through civil unions, already gives gays the same state rights as heterosexual married couples. The only thing at issue, as far as I can tell, is the word marriage.

So suppose California law allowed all speech, but used a different word for gossip than non-gossip speech (such as, say, "gossip".) Then the California Supreme Court decides that this discriminates against gossipers and rules it unconstitutional for the state of California to distinguish, even in language, between gossip and non-gossip. Then an amendment comes up to overturn the decision and allow California to distinguish, in language only, between gossip and non-gossip.

I don't see how a religious Jew, believing gossip is a sin and non-gossip is not, can vote to not allow the state of California to have different names for that which your religion defines to be different things.

"The sheet with the hole is a myth, isn't it?"

No. While it's not a widespread practice even among the ultra orthodox, there are Jews who practice it. I first heard about from a friend who is the son of orthodox Dutch Jews. Although I have not checked it out throughly. BTW the Internet is not the ultimate authority on everything. Of course, I'm not either.

Christopher Phelan - you make an interesting point about language. Of course, the Jewish words for things would be in Hebrew, and so California could call it what it wants in English.

And that's exactly the point. The English word "marriage" itself means different things in civil law and in different religions. Traditional Jews are free to distinguish between marriages that are valid and invalid according to Jewish law, even if the validity of those marriages is different under California law. Jews don't need the California definition of marriage to correspond with the halachic definition.

exorcise, not exercise. Ick

WM13, a while back I tried to argue that Chicago's ban on foie gras fails to be rationally related to a legitimate government interest, so at least we agree there.

BruceA's argument presupposes that it is possible to be halachically observant and participate meaningfully in a pluralistic democratic society.

I think that supposition is unwarranted.

In this specific case voting for gay marriage violates the prohibition against placing a stumbling block before the blind (lifnei iver).

First of all, it should be noted that male anal sex is prohibited to both Jews and Gentiles (under the laws of Noah.) Second the injunction against placing a stumbling block before the blind applies to assisting or tempting Jews or Gentiles to sin (see Nedarim 62b.) From this we can see that anything that would assist or tempt man - Jews or Gentiles - to have anal sex is a prohibition of lifnei iver. If the status quo ante is a law which prohibits state recognition of 'marriage' between two men, what effect can changing that law be other than to give seeming endorsement or at least acceptance to homosexual relationships?

An observant Jew is forbidden to even set foot into a non-kosher restaurant, lest someone see him and assume the restaurant is kosher. What message does it send for an observant Jew to support additional rights or recognition for those who commit a sin halacha singles out in two ways - by forbidding it to Gentiles as well as Jews and by forbidding a Jew to transgress it even upon pain of death?

I'm sympathetic to the libertarian argument but at least in this case it is incompatible with halach. The only choices are to try move civil law towards halachaic law or abstain from participating in civic society altogether.

Side note, I am not versed in Jewish teaching

And apparently not all that well-versed in Biblical teaching either, given your deficient analysis of what the Bible says about killing babies (a particular Psalm comes to mind), weapons (the Sermon on the Mount is quite relevant), and adultery (which among other things, presupposes marriage)...

From this we can see that anything that would assist or tempt man - Jews or Gentiles - to have anal sex is a prohibition of lifnei iver.

Well, obviously.

I never ceased to be amazed at the unabashed absurdity of religious beliefs. Seriously, how do otherwise intelligent people believe this stuff?!?

Perhaps one could symbolically transfer the sin of anal sex to a chicken, by swinging the chicken around one's head.

For those that are interested, Steven Greenberg wrote a pretty good piece in Tikkun a while back.

As a few comments have noted, under Jewish religious law, the relevant issue for non-Jews is the Seven Noahide Laws and specifically, whether homosexuality is prohibited by those laws. The relevant issue for observant Jews is whether they have an obligation to promote the observance of the Seven Noahide Laws among non-Jews, and if so, the parameters of that obligation and how voting for or against (or abstaining) the proposition affects that obligation.

I don't know how the above analysis would turn out (and perhaps reasonable people could disagree on that) but I doubt that there is any construct in which observant Jews are obligated to oppose (to use the analogies above) the First Amendment or state marriage laws. Those situations are distinguishable.

Houston Lawyer: " However, there is a wide chasm between tolerating something and actively promoting it."

For some people, there is no chasm at all. For them, any toleration of homosexuality IS actively promoting it.

"From this we can see that anything that would assist or tempt man - Jews or Gentiles - to have anal sex is a prohibition of lifnei iver. "

Anything? Really? Then I guess Brad Pitt must be banned, because he sure does tempt me!

(1) You are wrong about the empirical effect of SSM on anal sex. By providing gays with the tools and recognition to create stable monogamous relationships we would decrease gay promiscuity and lower the overall rate of sinful behavior. Perhaps failing to provide SSM is really the stumbling block (or kicking the cane out, to stretch the metaphor) because we are tempting gay men to reject monogamous marriage altogether in favor of a party lifestyle?

Promiscuity is not the issue. Halacha has no preference for monogamous anal intercourse over promiscuous anal intercourse. Besides which the halachic calculation is not an empirical one. If a Rabbi coming out in favor of state recognition of SSM, and that gave one homosexual Jew raised orthodox the courage to come out of the closet and seek out anal sex, the Rabbi would have perpetrated a great sin even if thousands of other, already openly homosexual men, slightly reduced the number of times they engaged in anal sex

From Steven Greenberg's piece:

Still, it appears to many Orthodox Jews that in the case of homosexuality there is little use for dialogue in the face of such a clear biblical prohibition. A number of my colleagues and friends want very much to respond compassionately to gay people, but feel compelled to remain loyal to what they see as the unambiguous word of the Torah.

It's a lesser form of the problem of the Amalakates, no matter how wrong it feels there is nothing to be done with the framework of halacha.

The conservative movement's so-called responsa on this issue are a joke. Better to take the reform position and reject halacha altogether.

(3) Discouraging the sin of homosexual intercourse has very little to do with recognition and rights for homosexual individuals. Every major denomination has explicitly said that its disapproval of homosexual conduct can never be an excuse for denying homosexual individuals their due dignity (kavod habriot).

I agree 100%. Any homophobia aimed towards celibate homosexuals is completely unacceptable.

Waldensian here provides a neat counterpart to Greenberg's thoughtful commentary. Thanks for the contrast.

I'm not sure what to make of this sideways gratitude. So lets get down to brass tacks.

As a starter, I think kapparot is totally, utterly stupid. That even by the standards of religious beliefs, it is laughably absurd.

Do you disagree? If so, how about some "thoughtful commentary" explaining why I'm wrong?

In truth, I must confess that kapparot is not inherently more stupid, than, say, the belief that Jesus Christ is our Saviour. Dump sins on the chicken, dump sins on the carpenter -- same basic idea, actually.

BruceA:

I assume that your Christian beliefs require giving charity. But I assume that you would oppose a law that mandated charitable contributions.

But we already have such laws. They go under the labels 'welfare' and 'medicaid'. Obama used a quote from the bible about being our brothers' keepers to justify his plans to create even more such laws. Shouldn't you be opposing Obama's attempt to impose his religion on the rest of the country?

Christopher Phelan: Yes, Some states already have civil unions, which grant nearly the same direct benefits as marriage. However, there are tons of other places in both federal and state code that grant special consideration only to those that are married. All of those in the state could be fixed by the state, but a far easier patch is to merge civil unions into marriage. In addition, the civil union status is useless under federal law, and the state can't directly do anything about that.

As others have noted w/r/t Noachide laws, homosexuality is an area of halacha in which Jewish tradition has specifically commented in relation to wider non-Jewish society. For example, a midrash says that one reason HaSham destroyed the world in the flood is that the generation of the time wrote ketubot (marriage contracts) betwee men.

As to the Conservative tshuva permitting gay relationships, Oren shouldn't take so much offense at it being called a joke, since one of the major Conservative Rabbis basically said the same thing in his own tshuva on the subject and resigned from the Conservative law commission, as did several others, b/c of it.

"A Jew who follows traditional halacha would oppose same-sex marriage, gossip, non-halachic opposite sex-marriage, and non-halachic opposite-sex divorce. But if that person supports a law outlawing same-sex marriage because it would violate halacha, but would not support a law outlawing the rest, he or she must come up with a theory (at least to himself or herself) explaining the difference."

Well, yes, though it is no less true for a person of conscience that a valid theory needs to be developed whether the vote is yea or ney. It's not a one-sided obligation; responsibility and conscience necessarily inheres to both sides of the debate, both sides of the vote. There is no mindless or thoughtless default position.

"My conclusion is that halachic Judaism is not a reasonable comprehensive doctrine in the Rawlsian sense. (http://www.wku.edu/~jan.garrett/ethics/matrawls.htm#rcd)

That leaves one with two options: a) abandon, or modify beyond recognition, halacha or b) refuse to participate in a pluralistic democratic society."

Isn't there a third choice: participate in pluralistic democratic society, but not on terms or in a manner of which John Rawls would have approved? For myself, I could bear the strain of doing something without John Rawls's approval (especially if I had God's).

Absolutely not. They are superior in authority to the Tannaim because they speak for the newest generation of Jews, those that will bring it forward into the next generation. Judaism is a religion of the living, not the dead.

I am missing context here. It looks like something important is being discussed, and I don't have the background data I need to understand the point.

As a guess, the current authority can override the older rules because they adapt the faith for changing times?

Brad makes a really interesting and odd argument: halachic Jews may be precluded from participating in democratic societies. I had not thought of this possibility before, and it intuitively seems wrong.

Perhaps one way of avoiding the problem is to acknowledge that government compulsion is not always the best way of persuading people to take moral actions. To return to my gossip example, it would be a perfectly reasonable position to believe that (1) gossip is wrong, (2) American law should not penalize gossip, and (3) individuals and small communities should dissuade people they know from gossiping. (In fact, that is my position.) So a Jew could still be committed to the idea that gossip is wrong, but the specific means of implementing that is persuasion, social pressure, and education, not government compulsion. I think the same argument applies to homosexual behavior: even if you oppose it, government coercion is not the best means to enforce this belief.

Michael B correctly notes that everyone needs a theory to justify or explain votes. Correct, and I have argued that the little-L libertarian theory is such a theory.

Perhaps one way of avoiding the problem is to acknowledge that government compulsion is not always the best way of persuading people to take moral actions.

And, as a corollary, the absence of government restriction on X is not an endorsement of X.

As a guess, the current authority can override the older rules because they adapt the faith for changing times?

Actually under the Orthodox worldview the exact opposite is true. The Orthodox believe that at the time Moses was given his five books (Torah or written law) he was also instructed in how it should be interpreted (the Oral Law.) He then passed this knowledge on to the seventy princes of Israel who passed them on to thier desendants and so forth and so on until the time of the Talmud.

Like a game of telephone the message got garbled, which is why the Rabbis at the time of the Talmud reluctantly decided to write down the 'Oral Law'. Because of this set of circumstances those from an older generation are presumed to have a more authentic version of the oral law to work with, and one generation may not overthrow a definitive rule made in another generation, except in certain exceptional circumstances.

This is the exact opposite of the interpretive philosophy Oren apparently believes is appropriate, and which he strangely justifies by paraphrasing Jesus! (Compare "Judaism was created for the benefit of man, not man for the benefit of Judaism." &"And [Jesus] said to them, 'The Sabbath was made for man, and not man for the Sabbath'")

--
BruceA

To return to my gossip example, it would be a perfectly reasonable position to believe that (1) gossip is wrong, (2) American law should not penalize gossip, and (3) individuals and small communities should dissuade people they know from gossiping. (In fact, that is my position.)

In order to believe this wouldn't you have to believe that government persuasion not only doesn't work, but is counterproductive? After all 2 &3 are not mutually exclusive, aren't both more effective at preventing gossip than either alone?

Ben S wrote "The issue is whether the government must take the affirmative step of sanctifying their union with civil recognition."

That quote illustrates my point. The government should not, and cannot, be in the business of "sanctifying" anything. That is solely the domain of religious groups.

Brad asks, "In order to believe this wouldn't you have to believe that government persuasion not only doesn't work, but is counterproductive? After all 2 &3 are not mutually exclusive, aren't both more effective at preventing gossip than either alone?"

The initial question should be whether there is a sufficient reason for using government (which is the only institution that can legitimately use force to back up its decrees). And in the absence of external harm, I see little or no reason to involve the machinery of government.

To take a trivial example, but one that illustrates the point: I think people should have cake on their birthday, but I would oppose a law that mandated this.

Moreover, there are several reasons why a government ban or use of force might not be warranted, even if one gets over the initial threshold. Most importantly here, there are people who disagree with the moral position in a fundamental way. If we as a society start using government to impose our moral beliefs on others (again, in the absence of external harm other than moral offense), it will lead to bad results. We are all better off with a "live and let live" attitude. And as Jews (the perpetually oppressed minority), we should be quite wary of this concern.

Government compulsion also eliminates moral choice and personal dignity. A law fining people for not saying "thank you" at appropriate times might get more people to say those words, but they would deprive the speaker of the opportunity to feel and express real gratitude. And such a law would treat people as morally incapable people (somewhat like children, who are in fact told to say "thank you" at appropriate times as part of their moral training), thereby de-dignifying these adults.

I think the same applies here. If homosexual conduct is a sin or moral mistake, a moral being should nonetheless be given the opportunity to make that mistake --- or choose not to make that mistake --- without government compulsion, or even government influence. Other social institutions which do not have the power of the sword should be exerting that sort of influence.

Brad, you are going to have a hard time explaining the evolution of inheritance law in Numbers 36 according to your static-and-unchanging halacha. Moses set forth one law, then changed it, then changed it again -- perhaps you could enlighten us on why he did so?

Bruce Adelstein's argument makes sense to me. Gay marriage seems like a good idea in any event in principle -- if monogamy is good for straights, why not for gays?

And in practice, there won't be much fiscal effect for society as a whole -- the marriage penalty and the social security penalty will offset what gay married couples receive in reduced death taxes. (Heaven knows I haven't received any net financial benefit from the government in exchange for marrying).

And gay marriage isn't needed for the disturbing parade of horribles predicted by the opponents of gay marriage to occur -- civil unions are already sufficient for them.

The church that may lose its tax exemption is in New Jersey, which has civil unions, not gay marriage.

And the California Supreme Court's Koebke v. Bernardo Heights Country Club already allowed private institutions to be sued for not treating gay civil-union couples the same as married straight couples, even before gay marriage became legal in California.

Proposition 8 supporters, instead of trying to ban gay marriage, instead should have put on the ballot an initiative that would have protected the tax exemptions of churches that refuse to perform gay marriages, and -- as South Africa did when it legalized gay marriage -- created an exemption allowing state marriage celebrants to decline to perform such marriages if doing so is repugnant to their conscience.

That proposition would have been more useful in protecting religious freedom, and would have been easier to pass than Proposition 8, since it would have been supported by a coalition of not only social conservatives (who support Proposition 8) but libertarians, moderates, and true civil libertarians (who will vote in large numbers against Proposition 8).

Granted it seems that the G-d had given Moses a different rule prior, but a) it can be seen as moving from the general to the specific and b) G-d is certainly allowed to change his mind.

God was consulted for the first change but not the second -- the second time Moses changed the law on his own initiative. The first time was the word of God, the second time was "according to the word of God" (al pi adonai). Compare Numbers 27:

So Moses brought their case before the LORD 6 and the LORD said to him, 7 "What Zelophehad's daughters are saying is right. You must certainly give them property as an inheritance among their father's relatives and turn their father's inheritance over to them.

with Numbers 36:

5And Moses commanded the children of Israel according to the word of the LORD, saying, The tribe of the sons of Joseph hath said well. 6 This is the thing which the LORD doth command concerning the daughters of Zelophehad, saying, Let them marry to whom they think best; only to the family of the tribe of their father shall they marry.

(Emphasis mine, of course).

So we have a situation in which a man changes the explicit word of God (having just heard the words directly from the source just a few chapters ago!) in order to prevent an unjust outcome. Even more importantly, even though the third rule is manifestly different from the first, Moses says that nevertheless, this is what God commands. His revision, in other words, is still accorded the authority of God even though he has obviously changed the meaning from what God himself promulgated a short while age.

Proposition 8 supporters, instead of trying to ban gay marriage, instead should have put on the ballot an initiative that would have protected the tax exemptions of churches that refuse to perform gay marriages, and -- as South Africa did when it legalized gay marriage -- created an exemption allowing state marriage celebrants to decline to perform such marriages if doing so is repugnant to their conscience.

I thought such protections were already codified as a matter of Federal 1A law, e.g. Dale v. Boy Scouts.

Brad - I have a detailed post on the Daughters of Zelophehad story explaining how is reflects an evolutionary view of halacha. It is here.

Hans - how's it going. (Hans and I worked on a CA Supreme Court amicus brief (with some help from Eugene) in Aguilar v. Avis Rent-a-Car about a decade ago.)

Michael B asked, "Out of curiosity, would you mind briefly articulating in what sense you're a small 'l' libertarian, and not a large 'L' Libertarian? For example and at a practical political level, I'm wondering how you'd frame the school voucher issue or, more problematically, a conception of federalism applied to the abortion/right to life issue."

As I understand it, Large L refers to the party; small L refers to a general libertarian point of view. I see a larger role for the government than the Libertarian party does, but smaller than many other people do.

School vouchers and I are old friends. (I debated extensively in favor of both Prop 174 (in 1993) and Prop 38 (in 2000) here in California.) I'm not sure exactly what you are asking in terms of framing the issue, but as I see it, the arguments for compulsory education and government funding of education are compelling. Given that, school vouchers have numerous practical advantages over a system of purely government schools. I'm probably missing something in your question.

I'm not sure I understand what you are asking in the abortion / federalism question either.

Bruce, thank you, I was curious.

For the record, I'd agree a large "L" Libertarian could be considered one associated with the Libertarian Party. Though when I use the term large "L" Libertarian I'm more simply thinking of someone who is much more decidedly ideologically Libertarian than someone who might be libertarian as pertains to some issues, but is not an ideological Libertarian in a more overarching, primary or absolute sense. But thank you.

"A group of private citizens have their own idea about what California should allow. This puts them at odds with governor, legislature, and courts." John D

Yes, it's that pesky "We the people ..." part of the U.S. Constitution. Isn't there some way that can be redacted, perhaps via the courts, at least on a selective basis?

And what's with the "private" qualifier? It's as if you're intending to denigrate or marginalize the full gravity inherent in their status as citizens.

"The sheet with the hole is a myth, isn't it?"

No. While it's not a widespread practice even among the ultra orthodox, there are Jews who practice it.

Hate to break this, but you can always find Jews who practice almost anything imaginable. Not terribly different from most religions. The existence of an anecdote does not create a rule.

A substantial number of homosexual men never engage in anal sex at all. Does Judaism have any objection to them?

ReaderY's comment above covers within a heterosexual marriage. In a homosexual context, it might have an objection to non-Jews, though I'm not aware of one.

Amongst Jews, it would have an objection due to the lack of fulfillment of the positive commandment of Pru U'Rvu (be fruitful and multiply). There could also be an objection based on lifnei iver (stumbling block in front of the blind), as mentioned in middle of the comment thread: that is, explicitly permitting other homosexual actions would make it much easier to stumble into male/male anal sex.

"Michael B correctly notes that everyone needs a theory to justify or explain votes. Correct, and I have argued that the little-L libertarian theory is such a theory."

Yes, though as your conception of large L′ and my conception of large L″ Libertarianism differs, from this point of view you're suggesting a large L″ view.

For example and by contrast, my own more basic views can be typified as Classical Liberal and conservative together with some notable libertarian strains. Hence, as applied to the current issue, I take this extensive essay by Prager into full account since it reflects foundational aspects of my own thinking on the subject and in fact more fully substantiates and documents that thinking than I have. By contrast, to reflect upon another example noted herein, a proscription against gossip would not (of course) rise to a level requiring formal, legal articulations - the exception would be if "gossip" were to include libel and slander.

(Or perhaps you'd choose a small l′ and small l″, that's fine too, but I was more simply looking for a way to distinguish three levels rather than two.)

REaderY:"Conservative Judaism holding that homosexuality should be esessentially unrestricted (with a few winks and nods to technical prohibitions), "

I'm not a jew, nor do I have any knowledge of these laws. However, I think that your use of the phrase "technical prohibition" might be a bit loaded or distorting. If a prohibition is 'technical' then why is it so important to follow it? Or isn't it? What's the difference between again technical prohibition and a subtantive one?

Again, I plead ignorance, but I think a lot of people might find issue with that. Correct me if I'm wrong.

They deal with two separate injunctions. The male male anal sex prohibition comes from "Though shall not lie with man as though lie with woman for it is an abomination." The male female anal sex prohibition is derived from the prohibition on spilling one's seed on the ground. ("Onan knew that the offspring would not be his; so when he went in to his brother’s wife, he wasted his seed on the ground in order not to give offspring to his brother.")

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Re: Daughters of Zelophehad
Thanks for pointing this out Oren &BruceA, I'm going to read up on it and the various commentaries. I definitely think there are some fundamental paradoxes that arise from the intersection of halacha and liberal democracy (outside the land of Israel which has its own deep conceptual issues.) I wonder if there is any English language literature on the subject.

The relevant Talmud passage is Nedarim 20b,

:R. Johanan b. Dahabai said: The Ministering Angels told me four things: People are born lame because they [sc. their parents] overturned their table [i.e., practised unnatural cohabitation]; dumb, because they kiss 'that place'; deaf, because they converse during cohabitation; blind, because they look at 'that place'...

:R. Johanan said: The above is the view of R. Johanan b. Dahabai, but our Sages said: The halachah is not as R. Johanan b. Dahabai, but a man may do whatever he pleases with his wife: Meat which comes from the abattoir, may be eaten salted, roasted, cooked or seethed; so with fish from the fishmonger.

Note: The Medieval sage Maimonides attempted to resolve the tension between this leniency and the interpretation of the Biblical passage of Onan as follows:

A man’s wife is permitted to him. Therefore a man may do whatever he wishes with his wife. He may have intercourse with her at any time he wishes and kiss her on whatever limb of her body he wants. He may have natural or unnatural sex, as long as he does not bring forth seed in vain. (Mishnah Torah Issurei Biah 21:9)

The basic liberalization of the last generation or so is a greater acceptance of the view that acts which generally tend to strengthen the marriage and generally lead to the couple having children are not necessarily "in vain" as long as the couple endeavors to have children over the general course of the relationship.

Now, that said, previous generations have no claim of authority to bind future Jews to their particular interpretation. No such power is granted in the Torah (in fact, quite the contrary, the Torah obliges to us to obey the judges in our day, not the judges of yesterday). The only authority that I ascribe to the sages is contained in the power of their words to convince those of us in the present of their correctness. Where the sages are convincing, they are binding -- where they fail to convince, their words are empty. Judaism is a religion of reason, not force. We do not teach our children "do as I say or else", we teach them "do as I say because what I say is correct".

Put very simply, classical Judaism is based on revelation; rabbinic Judaism involves a combination of revelation and human reasoning. Classical Judaism holds that there is an oral law, and hence the views of the rabbis of the Talmud are regarded as being more than merely personal opinions. Within classical Judaism there is some room for differences of emphasis between the revelatory and rational components, as well as how flexible interpretation can be. But views that Judaism can be based on reason alone have been frequent, and generally led to their adherents giving up in frustration and looking elsewhere for inspiration.

The idea that everything can be based on reason is a rather quaint concept that seems to have lost some traction over the course of the 20th Century. It's now pretty clear mathematics can't be completely based on reason alone, and it's doubtful anything else can. As Bertrand Russell put it, he never found any satisfactory method to demonstrate by means of reason alone that his dislike of torture was different in some fashion from his dislike of broccooli, and he suspected that human beings' centruries of unsucessful efforts at such an enterprise should be abandoned as fruitless.

Reason doesn't help with such things without some sort of a priori material to work with. There's no rational reason why anyone should prefer persuasion to force. It may come from some sort of divine source, there may be some sort of innate moral law people tap into from time to time, it may be evolutionary conditioning, or it may just be a matter of preference or habit.

Most philosophical ethics simply involves axiomatizing ones preferences. But there's no reason to prefer one set of axioms over another. Reducing to axioms and theorems can lead to new insights about ones existing beliefs but it doesn't teach one anything inherently new. It's simply a way to systematize and examine what one already knows. Ones knowledge has to come from some other source.

I understand that saying there has to something in the mix besides reason alone does not necessarily make a religious-law system based on revelation either correct or palatable. The issues involved can't be so easily resolved or dismissed. There is reason to be skeptical of revelation and inherited wisdom, but there is also reason to be skeptical of reasons or claims that particular results are based on wisdom. My general view, so far as theory of government is concerned, is that we shouldn't assume we know all the answers and that the other people don't have anything to teach us.