I have been following this thread with interest, given that I have been doing a
significant amount of research on homosexuality and Judaism. A few thoughts
based on this perspective-
1) The discussion regarding tax exemptions has relevance not only for
Conservative Christian but also for Orthodox Jewish educational institutions.
On a general level, Judaism is believed to be counter-cultural by most of its
traditional authorities (including some authorities who do not denominate as
Orthodox). This means that the beliefs of the rest of society are irrelevant
even if those beliefs constitute the majority perspective. That said, the
parameters of Jewish lawmaking can be fuzzy especially when it comes to social
issues such as this with a very public presence. Inevitably, although in
theory the law does not change (according to the most traditional authorities),
there is definitely a social factor in its application.
2) With respect to homosexuality specifically, there is an explicit biblical
prohibition against homosexual behavior (interestingly, that biblical
prohibition applies only to male behavior but the rabbinic tradition extends it
to lesbian acts as well). According to Jewish law, biblical prohibitions
carry more weight than rabbinic prohibitions, but both are seen as within the
authority of the tradition.
3) Given this explicit biblical prohibition, it is hard to imagine that even
according to the most lenient interpretations of Jewish law by Orthodox
authorities, Jewish same-sex marriage (known as "kidushin," meaning
"sanctified") will ever be possible. Interestingly, many gay Orthodox Jews not
only understand this reality but also support it because they see this
limitation as a part of the tradition they otherwise hold dear. When an
openly gay rabbi with an Orthodox ordination performed a same-sex marriage a
few years ago (a civil ceremony with Jewish trappings), this triggered mixed
reactions even among gay Orthodox Jews.
4) Recent discussion has surfaced about whether Orthodox Jews can support gay
rights in the secular political arena and this has triggered mixed responses.
Orthodox Jews are far from a monolithic group. There are Orthodox authorities
who see a distinction between Judaism's religious views and secular political
issues involving homosexuality (including homosexual marriage).
5) On the tax exemption issue, I may be mistaken but it seems to me that
same-sex marriage is not the only issue that can potentially surface in
connection with homosexuality. When the Conservative movement considered the
issue of gay marriage back in 2006, the issue of rabbinic ordination also
arose. Today, both Reform and Conservative rabbinic schools invite and permit
openly gay people (men and women) to apply for admission. A recent article in
Tablet Magazine discussed how LBGT issues are now getting traction at the
Modern Orthodox Yeshiva University in N.Y. ("Out, Proud, and Kinda Loud at
Yeshiva University"), but I can't imagine that a conventional Orthodox yeshiva
would ever support ordination for openly gay men who engage in homosexual
activity. And speaking of discrimination, no woman (gay or straight) currently
can be ordained as an Orthodox rabbi and I highly doubt that mainstream
Orthodoxy will ever change this.
Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law & Information Technology
Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
http://amzn.to/15f7bLH
You can view my papers on the Social Science Research Network (SSRN) at the
following
URL: http://ssrn.com/author=345249
________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Thursday, April 30, 2015 8:14 AM
To: Law & Religion issues for Law Academics
Subject: Re: Religious organizations, tax-exempt status and same-sex marriage
I seriously doubt that any school has, or will have, a rule that prohibits
same-sex "dating," as such, akin to one of the Bob Jones prohibitions (set out
below). I'd also be surprised if any schools will refuse to admit, or will
expel, students who are gay, or who are "partners" in a SSM (again, akin to Bob
Jones). Several schools, however -- Notre Dame included -- have rules
generally prohibiting students from having sex outside of marriage. I wonder
whether any of those schools will extend such rules to prohibit sex within a
SSM, thus creating a facial discrimination.
Bob Jones rules at the time of the IRS Ruling:
"There is to be no interracial dating."
"1. Students who are partners in an interracial marriage will be expelled."
"2. Students who are members of or affiliated with any group or organization
which holds as one of its goals or advocates interracial marriage will be
expelled."
"3. Students who date outside of their own race will be expelled."
"4. Students who espouse, promote, or encourage others to violate the
University's dating rules and regulations will be expelled."
On Thu, Apr 30, 2015 at 8:58 AM, Ira Lupu
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:
Last night, Michael Worley wrote, "some colleges forbid same-sex dating." This
made me genuinely curious. These rules can't possibly forbid two men, or two
women, from going to dinner and a movie; or forming a close bond of trust and
friendship; or even expressing affection in the form of a hug. So what do
these rules forbid? In particular, what do the rules permit different sex
couples to do that opposite sex couples may not do?
On Thu, Apr 30, 2015 at 12:35 AM, Michael Worley
<mwor...@byulaw.net<mailto:mwor...@byulaw.net>> wrote:
Those distinctions are not important-- some colleges forbid same-sex dating.
On Wed, Apr 29, 2015 at 10:24 PM, Brian Landsberg
<blandsb...@pacific.edu<mailto:blandsb...@pacific.edu>> wrote:
It is pretty sad that the SG could not answer the question.
My recollection is that Bob Jones did not lose its tax exempt status for its
beliefs, but for making inter-racial dating grounds to deny admission. The IRS
regs applied to schools, not to churches.
Sent from my iPad
On Apr 29, 2015, at 6:40 PM, "Brad Pardee"
<bp51...@windstream.net<mailto:bp51...@windstream.net>> wrote:
In an article from the Weekly Standard, the question was raised about the
implications for religious organizations losing their tax-exempt status if they
continue to oppose same-sex marriage. The article talked about the case of Bob
Jones University v. United States (1983), where they lost their tax-exempt
status based on their opposition to interracial dating. Given the number of
instances I've seen where parallels are drawn between interracial relationships
and same-sex relationships, it seems realistic to ask if religious
organizations would be similarly stripped of their tax-exempt status if the
Supreme Court finds a constitutional right to same-sex marriage. The article
includes this piece of discussion between Justice Samuel Alito and Solicitor
Donald Verrilli Jr.
JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was
not entitled to tax-exempt status if it opposed interracial marriage or
interracial dating. So would the same apply to a university or a college if it
opposed same-sex marriage?
GENERAL VERRILLI: You know, I -- I don't think I can answer that question
without knowing more specifics, but it's certainly going to be an issue. I -- I
don't deny that. I don't deny that,
JUSTICE ALITO: It is -- it is going to be an issue.
http://www.weeklystandard.com/blogs/obama-admin-religious-organizations-could-lose-tax-exempt-status-if-supreme-court-creates-constitutional-right-same-sex-ma
What is the consensus of this list? Would a ruling in favor of same-sex
marriage lead to the same requirement that religious organizations accept
same-sex marriage to avoid losing their tax exempt status, or would the
religious freedom provisions of the First Amendment prevail here where they did
not prevail where Bob Jones University is concerned?
Brad Pardee
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Michael Worley
J.D., Brigham Young University
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053<tel:%28202%29994-7053>
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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