Americans’ definition of marriage for secular legal purposes, however, is expressed through the body politic’s collective will. The resultant definition may seem constraining or disconcerting to some, and, for their own religious purposes, they are welcome to a more expansive take. But marriage in the eyes of secular law – constitutionally removed from the dictates of any individual faith – need not honor any religious group’s particular choice of definition.
As is so often the case, Shafran gets the message wrong. Shafran is correct that government policy reflects the popular will, which is not an endorsement of any specific religious view. Shafran is wrong in thinking that there is no impact on religious liberty when the public expresses its will. Religious liberty exists in tension with the public right to constrain it for the general good. The public, in declaring same-sex marriage illegitimate, does constrain the right of religious groups who support it to act according to their religious beliefs. There is no suggestion in the debate the religious groups that oppose same sex marriages would have to perform them or support them within the religious contexts.
Ellenson is not asking the Orthodox to agree with his position on same-sex marriage. But he is pointing out that the Orthodox stance to deny marriage rights to same-sex couples is not consistent with religious liberty. As American Jews, we have learned that religious liberty is among the greatest gifts that this country has given to us. To limit that gift because we don't always like the outcome is to lessen and possibly endanger it.
Shafran is simply wrong here. The Orthodox can have it both ways. They can express their personal discomfort and opposition to same-sex marriage, but still affirm that in the civil, legal, and non-religious realms, it deserves support because it increases religious liberty.
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