Prop. 8 ruling sticks a pin into the balloon of justice
by Rachel Biale
| Follow j. on |  |
and |  |
In the three days leading up to the giving of the Torah on Shavuot, the people of Israel were instructed to cleanse themselves and stand at the foot of Mount Sinai with awe and trepidation, anticipating Matan Torah (the giving of the Torah).
This week, in this very period, the California Supreme Court missed a historic opportunity to give us its own revelation, its own version of a new covenant of justice.
The Midrash tells us that when God “shopped around” the Torah to the peoples of the world, no one wanted it. Each nation found in the Torah some ethical imperative that conflicted with its way of life or its means of livelihood.
When God came to the people of Israel, it was presumably already with a premonition of another “No thank you.” After all, God had already known this people’s craving for the “fleshpots of Egypt” over the path to freedom; their longing for the tasty vegetables — “melons [or squash] and cucumbers” of Egyptian cuisine over the prospect of a Promised Land.
Thus, the Midrash says: “‘And they stood under the mountain’ (Exodus 19:17) — Rabbi Avdimi bar Hama said: The verse implies that the Holy One overturned the mountain upon them, like an inverted bowl [kegigit], and said to them: ‘If you accept the Torah, it is well; if not, your grave will be right here.’”
Once presented with the choice of accepting the Torah or having Mount Sinai dropped on their heads, the people of Israel eagerly took a leap of faith, saying “na’ase venishma” — we will do it and [then] we will hear it. This inversion of the logical order of things — normally one first hears the “marching orders” and then follows through (or, as it is often translated, “obeys”).
The lesson of these midrashes is ever more resonant today.
There are times when true leadership requires holding a mountain over the ordinary citizens’ heads. That mountain today is the mountain of equal rights and “justice for all.”
Stuck in old ways and thought patterns, the people of California showed they were unable to leap to a new conception of justice when they passed Proposition 8 in the November election. The state Supreme Court had the opportunity — and the moral obligation — to compel us all to see the issues of equality and justice that were just beyond the grasp of a small majority of the electorate.
Had the Supreme Court seized this moment, it could have brought us a new Torah, a Torah of “liberty and justice for all.”
Had it taken this courageous step, many Californians would have had to practice first and then grow to truly hear and understand, let alone preach. With time and practice — and the discovery that expanding the tent of marriage to include LGBT couples does not harm heterosexual marriage — the justice of upholding same-sex marriage rights would have become self evident.
And I should know. After 36 years in a “mixed marriage” — that of a man and a woman — I have not felt my marriage threatened by the marriage of same-sex couples; not by my married same-sex friends or the 17,988 or so couples whom I do not know personally.
Instead, after the California Supreme Court’s failure to protect the right for everyone to marry, my marriage evokes not the sweetness of happiness and longevity, but the bitterness of an injustice.
Rachel Biale lives in Berkeley. She is the Bay Area regional director of Progressive Jewish Alliance.
Comments
Leave a Comment
In order to post a comment, you must first log in.
Are you looking for user registration? Or have you forgot your password?
All
05/29/2009 at 07:13 PM
As much as I would have liked to see Proposition 8 overturned by the court, I could see where the court was coming from. Proposition 8 was a constitutional amendment, which for better or worse, was passed by the people. The initiative process is deeply ingrained in California law, going back to the days of Hiram Johnson. Prop. 22 was a merely a statutory initiative and subordinate to the equal protection clause of the California constitution. So it was much easier for the court to overturn 22. Amendments to the California constitution may not violate Federal law or the Federal constitution, but the fact that Don’t Ask, Don’t Tell and the Defense of Marriage Act are still part of Federal law suggests that the attorneys who plan to appeal Proposition 8 to the Federal courts have a tough road ahead of them. Federal law does not protect people against discrimination on the basis of sexual orientation. That is the heart of the problem. In 2005, what gay Americans needed was a justice like Rosalie Abella added to the US Supreme Court. Instead they got a John Roberts. Justice Abella of Toronto, was born in a displaced persons camp in Germany after WWII. In 1998, as a judge on the Ontario Court of Appeals, she ruled in favor of a lesbian plaintiff trying to collect pension survivor benefits and started Canada down the road to recognizing gay marriage, based on the equality clause of Canada’s Charter of Rights and Freedoms (constitution). In 2004, Justice Abella was elevated to Canada’s Supreme Court and is now one of three Jewish justices on the Supreme Court of Canada. In 2005, gay marriage became legal across Canada.
Login to reply to this comment or post your own