Deconstructing Rabbi Shira’s speech

Stephen Richer is a co-founder and director of Gather the Jews.  The comments in this piece reflect solely his views.

The “6th in the City Shabbat” is always a blast.  I love singing along with the guitar of Rick Recht and his volunteer vocalists (including former Jewish Girl of the Week Erika), and I love jumping up for the super-soft-and-delicious challah at the end of services.

There’s also Rabbi Shira Stutman’s comments on world events and/or the Torah portion.  They’re always inspired, and I often nod in agreement.  When I disagree, I usually don’t say anything, but this time I have to scratch the itch.

On Friday, June 10, Rabbi Stutman offered an impassioned speech on gay rights: it’s lamentable that certain members of our society are still treated unequally under the law.  I couldn’t agree more – equality under the law is long overdue for gay Americans.  I also agree with Rabbi Stutman that we Jews should help advance the effort, and I salute her for joining the Pride march on Shabbat.

But Rabbi Stutman also quickly referenced the right to affordable health care when speaking about gay rights, as if the two are commensurate.  They’re not.

The gay rights movement is multi-faceted, but gay marriage has certainly become the focal point.  The argument here is that gay people should be treated as equals under the law – they should be able to celebrate marriage just like any other freely contracting adults.  And we me mean true quality under the law – equal in name and function (the civil unions argument is nonsense).

An analogous situation for health care would be if we systematically prohibited certain people from purchasing health care.  If redheads (I’m one) were legally prohibited from buying health care simply as a result of their being genetically different, then we would have a parallel situation to gay marriage.

But that’s not what is meant by those who argue for the “right to affordable health care.”  This argument posits that it is not enough for law to allow all citizens the right to purchase health care (which we currently have), but rather, we should make sure that all citizens have the means, in addition to the legal right, to buy health care.

Say what you will about the merits of that argument, but it is not analogous to the gay marriage movement.  For it to be comparable the battle for gay rights would have to look like this:  Not only must we remove the legal prohibition against gays marrying, but we must also provide incapable gays with the means of doing so.  Those gays who are socially handicapped – and therefore lack the skills of wooing a spouse – should be provided with classes on social interaction such that all people can acquire a marriage certificate.

The two cases are clearly not the same, and I daresay the comparison cheapens the plight of gays ever so slightly.  Gays are, by law, prohibited from marriage.  There is not one group in the country that is, by law, prohibited from buying health care.

 

 

 

 

 

 

 

21 replies
  1. Joshua
    Joshua says:

    Stephen,

    I think you are missing a greater point. Rabbi Shira is referring to inequalities that exist in general. That is a greater comparison and point. Yes, there is no prohibition against healthcare explicitly. However, there are financial hurdles and limits that make healthcare difficult for people to acquire.

    I do agree that you cannot equate gay rights movement with the right to healthcare, EXCEPT that they both touch on fundamental human rights (HR). If you utilize the HR framework as a backdrop to the conversation, and remember not to confuse the forest for trees, then each situation is highlighting instances of inequality broadly. Despite the specifics of motivation and force, you cannot deny the facts: 1) people are being denied the right to marriage because of laws AND 2) people are being denied the right to healthcare because of financial burdens. What is the common factor? People are being are being denied rights. I’m sure you can wince at the overly broad use of general history, but don’t forget to look as deeply as possible and ask: what is the relationship. It’s fundamental justice, no matter how disparate they may seem, they shed from the same cheek of sorrow, and must be corrected.

    Joshua,
    Co Founder of Gather The Jews

    Reply
    • Stephen Richer
      Stephen Richer says:

      Hi Joshua. I wasn’t trying to make a greater point. I was simply saying that the right to gay marriage and the right to affordable health care are not analogous. I thought I made it clear, but one is expressly prohibited by law (in most states), and one is not. I realize that not everyone can afford healthcare, but, again, this is not the result of laws, but the result of financial circumstance. No group of people, legislative body, or judicial body has said, “let’s keep this group from being able to buy health care.”

      Now let’s look that at the part where you make two numbered points. “1) people are being denied the right to marriage because of laws AND 2) people are being denied the right to healthcare because of financial burdens.” Please permit an analogy. Let’s say I own a hamburger store (kosher! Vaad certified!). The hamburgers are $10 for all customers. In the first instance, I deny you entry to my store because you’re… I don’t know… under 6’0. In the second instance, I allow you into my store, and you’re allowed to buy a hamburger. Unfortunately, you don’t have $10. Yes, both instances amount to the same fact — you can’t buy a hamburger. But you have to recognize that in instance A, I am actively preventing you from buying a hamburger. In instance B, nobody is stealing and taking your money, and nobody is keeping you from entering the store and having the same right to buy a hamburger as everybody else.

      As for rights in general, I don’t think you have the right to anything that requires the active participation of another person. You have the right to be left alone; you have the right to not be shot at; you have the right to not be assaulted. You do not, however, have the rights to other people’s services. You do not have the right to my hamburgers at $1 just because you only have $1. They are my hamburgers, and I can sell them for whatever I want. You DO have the right to not have my hamburgers thrown at you. But you do not have the right to tell me what to do with my hamburgers.

      Reply
  2. Jacob
    Jacob says:

    Josh.
    What about the basic human right to a brand new BMW. Or the right to a 7 foot plasma tv. These are basic human rights and someone who does not want to pay for them or who chooses not to should be given them. Perhaps not.
    Poor people do not die regularly from lack of medical care in this country. Our emergency room system is not great but people are not turned away. this meets the basic human right criteria.

    On a personal note I agree That the health care system in this country is out of line with regards to costs and benefits related to the types of jobs people have and the needs they have. I work at a big company and took a major health insurance cut last year. But giving health insurance away to everyone is not the answer. free health insurance is not a human right.

    Reply
  3. Joshua
    Joshua says:

    If you believe branding consumer products is a human right, then perhaps we need to define Human Rights for our conversation. I recommend as a starter the declaration of Human Rights. Then we can go into more subtle articulations and agreements. I am sure we can find some common ground.

    And though I do believe in the right to enterprise (responsibly), you must certainly appreciate the difference between a child receiving an anitbiotic versus that child receiving a gameboy or xbox 360.

    Using Maslow’s hierarchy of needs, I think we can both agree that there is a pyramid of needs. Those needs go hand in hand with rights.

    I am sure SOME may believe that the right to bmw’s or consumer goods like electronics is a must, but, in all honesty, you cannot fail to appreciate the not so subtle difference between basic fundamental healthcare and driving a bmw. Children and their parents are placed in social classes. Perhaps you might feel that those wants are rights, but many in the world would settle for far less.

    Be in peace.

    Reply
    • Jon
      Jon says:

      I have seen the way some of the girls act in the community, the certainly would argue their Coach/ LV /Prada purses are a birthright, or at least that is what their fathers’ told them.

      Reply
    • Noa Levanon
      Noa Levanon says:

      Joshua,

      Maslow’s pyramid of needs details the progression of steps toward human self-actualization. (He developed this hierarchy on the assumption that people were not blindly reacting to the world around them. He then studied how human beings were choosing to behave. His theory essentially depicts how people choose which objectives to strive for in a given context.)

      As such, Maslow’s hierarchy is in no way the appropriate framework to use here. First of all, it is primarily descriptive rather than prescriptive. Second of all, even if we try to apply it prescriptively, then it behooves us to recall the context of basic US tenets: Namely, the constitution does not guarantee self-actualization, but rather only guarantees the right to the PURSUIT of self-actualization.

      Reply
  4. Stephen Richer
    Stephen Richer says:

    Again, in both instances (antibiotic and XBOX), you are talking about somebody else’s services. You do not have the right to somebody else’s services or property. Period. To say so would be to say that the doctor or Microsoft doesn’t have the right to do what he wants with his antibiotic and XBOX. The right that you have is that neither the doctor nor Microsoft can assault your right to non interference.

    P.S. Quoting international agreements and institutions on a Jewish blog… Interesting…

    Reply
  5. Joshua Kaller
    Joshua Kaller says:

    Actually Stephen there are plenty of instances where you DO have a right to someone’s services. For example, if you are indigent, and you are being indicted for a felony, or misdemeanor with a possible sentence of incarceration you DO have the right to an attorney. Your period is not so period.

    Reply
    • Adam Schwartzbaum
      Adam Schwartzbaum says:

      The question of entitlements comes down to which political community is deciding what we are entitled to. Our Constitution guarantees the right to an attorney in criminal trials – one which must be appointed by the court if one cannot afford one. For over a century, we have decided that Americans have a right to public education. Later on, after the ravages of the Great Depression, we decided that the elderly, orphans and the disabled have entitlements to social security. Americans build on our great social contract through the Constitution and Supreme Court interpretations of its dictates, and through democratic legislation. That is what we did with the passage of Health Care Reform. Our political community decided health care WAS a right, and we enacted legislation to make this a reality. This shouldn’t come as a great surprise; Barack Obama ran on a platform which specifically recognized health care as a human right. He made good on his promise. And those of us who agree that basic health care is something every member of our political community is entitled to are happy to see the result — just as we look forward to the day when equal rights for homosexuals will also become the law of the land.

      Reply
  6. Jon
    Jon says:

    This argument fails, because a person is refused marriage because of who they are. If people were refused health care based on their race, then there would be an argument.

    Also, saying people don’t have the ability get health care is also not really a true statement, at least in this context. You don’t have the right to free healthcare you don’t pay for. However if you have a heart attack, they are not going to refuse service. They are not going to leave someone with a bullet wound or a broken foot on the street due to lack of insurance. You will (and should) have to pay for services rendered. We then have methods in place to pay for the poor who can’t afford it otherwise.

    Unless its grossly misinterpreted, the constitution/ bill of rights doesn’t give you the right to health care. It gives you the right to choose how to live your life without government interference. Blocking gay marriage is a example of the government wrongly intervening in peoples life. Healthcare is not something that is mentioned one way or the other.

    Reply
  7. Robert Feldmeier
    Robert Feldmeier says:

    There is no right under the Constitution of the United States for anybody to get married. If it were a right, you wouldn’t need a license to do it – just as you do not need a license to open a synagogue or print political handbills. If it were a right, there could be no limitation on the institution – groups could marry, relatives could marry each other, children could marry their parents. Obviously, this is not the case

    Because it is not a right, marriage exists at the sufferance of the states. A state could completely abolish civil marriage if it so chose, The States determine, on a public policy basis, which types of unions the elected representatives of the people wish to encourage. Some states allow marriage between first cousins. Others do not. Some states allow marriage between neices and their Uncles. Others do not. A state could allow multiple persons to enter into marriage, although none do. A few states allow persons of the same sex to enter into marriage, although most do not. The matter is entirely one to be decided by the electorate of the state in question and is not a federal issue – the federal constitution is silent on the issue. According to the 10th Amendment, where the federal constitution is silent, the matter is reserved to the states or to the people thereof. NOTE: the 10th amendment does NOT reserve these matters to the “states or to the individual.”

    States could not make distinctions in marriage on the basis of race, religion, or any other constitutionally suspect category. Sexual preference is not a constitutionally suspect category. Unlike race or religion, which are mentioned in the text of the constitution (Amendments 1 and 14), sexual preference is not. Nobody here can cite any section of the constitution dealing with sexual preference because there is none. Therefore, the matter is entirely within the purview of the states.

    For similar reasons, healthcare is not a constitionally guaranteed right – nothing in the constitution speaks to such a right. Various federal statutes require hospitals which accept federal fudns to provide emergency stablizing care to anyone. State laws may also require broader treatment consistent with a state’s broader police power. A state may provide free healthcare to its citizens if it so chooses – some do. However, again, the absence of a federal constitutional provision shows that this is not a federally guaranteed right.

    I won’t bother arguing Rabbi Shira’s theological positions because they are plainly contradicted by Torah.

    Reply
  8. Jon
    Jon says:

    Robert,
    With all due respect, your position on marriage has one fatal flaw. States are supposed to recognize each other licenses. Its why my Driving license from VA allows me to drive anywhere in the country. The DOMA law is on shaky ground at best, and is probably unconstitutional. You can’t make a law up saying we have to recognize all other states legal documents, except the ones that recognize gays. This is clearly discriminatory. The law is going down, and it can either go down quietly in a situation like brown vs board where the Court’s realized the importance of a 9-0 ruling in favor of granting rights, or it can go down kicking and screaming with one side eventually looking like fools.

    So while you are correct, that you can ban marriage as a whole. Its also correct that in the near future a state will have to accept the marriage certificate from another state. The health care arguments however, is another story.

    Reply
  9. Robert Feldmeier
    Robert Feldmeier says:

    Again, it is helpful for us to examine the text of the constitution in these situations. I believe that you are refering to Article 4, Section I – the full faith and credit clause. I refer you to the final sentence of that clause

    “And the Congress may, by general laws, prescribe the manner in which such Acts, Records and Proceedings shall be proved AND THE EFFECT THEREOF” (emphasis added)

    Congress has, by a general law (ie, one which applies in all states, not just some regions), the Defense of Marriage Act, presecribed the effect of presenting a same-sex marriage record in another state – none.

    Incidentally, even if DOMA were overturned, it would not mean that same-sex marriage licenses would be valid in states which do not recognize same sex marriage. Your out-of-state driver’s license gives you the ability to drive in the host state TO THE SAME EXTENT as that given to drivers in the host state. For example, Montana allows students in their early teens to drive. That does not mean that a 13 year old can take his Montana Driver’s License and drive around New York City. New York does not allow drivers who are 13 to drive. Full Faith and Credit only requires a receiving state to treat an out of stater the same way it would treat an in-stater. Since 13 years olds who are in-state cannot drive in New York, neither can out-of-state drivers. Similarly, states which do not recognize same-sex marriage are only required to grant full faith and credit to the extent that they allow their own citizens to do or not do something. States which do not allow in-state citizens of the same sex to marry are not required to allow out-of-state same-sex couples to marry.

    Reply
  10. Robert Feldmeier
    Robert Feldmeier says:

    Again, it is helpful for us to examine the text of the constitution in these situations. I believe that you are refering to Article 4, Section I – the full faith and credit clause. I refer you to the final sentence of that clause

    “And the Congress may, by general laws, prescribe the manner in which such Acts, Records and Proceedings shall be proved AND THE EFFECT THEREOF” (emphasis added)

    Congress has, by a general law (ie, one which applies in all states, not just some regions), the Defense of Marriage Act, presecribed the effect of presenting a same-sex marriage record in another state – none.

    Incidentally, even if DOMA were overturned, it would not mean that same-sex marriage licenses would be valid in states which do not recognize same sex marriage. Your out-of-state driver’s license gives you the ability to drive in the host state TO THE SAME EXTENT as that given to drivers in the host state. For example, Montana allows students in their early teens to drive. That does not mean that a 13 year old can take his Montana Driver’s License and drive around New York City. New York does not allow drivers who are 13 to drive. Full Faith and Credit only requires a receiving state to treat an out of stater the same way it would treat an in-stater. Since 13 years olds who are in-state cannot drive in New York, neither can out-of-state drivers. Similarly, states which do not recognize same-sex marriage are only required to grant full faith and credit to the extent that they allow their own citizens to do or not do something. States which do not allow in-state citizens of the same sex to marry are not required to allow out-of-state same-sex couples to marry.

    Reply
  11. Jon
    Jon says:

    If I take my DL at 16 and drive across the border to MD, I doubt I would get a ticket even if the people in MD don’t allow a 16 year old to drive. Also by your standard you could ban any car’s that do not meet your emission standard (or any other standard) from entering the state. Its an unrealistic and unenforceable concept. (I did a little research and once you are 16, a state can’t ban you from driving, but Im actually working so I cant put too much time into getting you a link).

    Also I have a feeling that they never would have created this law if they didn’t feel there was the “awful’ threat of Gay marriage without it.
    I am a big proponent of states rights, but just not when they discriminate against another group. Esp when there are 0 reasons outside of religious ones, why people shouldn’t openly accept gay marriage. The divorce rate isn’t @ 50% because of gays, and the ability to have children is not a requirement of people getting married, otherwise infertile people would be banned from getting hitched.

    Reply
  12. Robert Feldmeier
    Robert Feldmeier says:

    If what you are saying is correct (which it is not), the most politically extreme State in the Union could legislate for all others. Other states would have to honor California’s medical marijuana licenses, where they do not allow marijuana for any purpose. Or, on the other end of the spectrum, other states which do not allow for the concealed carry of a firearm would have to honor Arizona’s concealed carry permits.
    That is why the full faith and credit clause requires a state to honor out of state public records ONLY TO THE EXTENT THAT THE STATE GRANTS ITS OWN CITIZENS THE SAME PRIVILEGE.

    One state, or a handful of states, cannot and should not be able to force same-sex marriage on the rest of the nation.

    You don’t have to like what other states are doing. That is the beauty of federalism – a one size fits all solution is not imposed by the fiat of one or a few states on the others. Since (as discussed above) same-sex marriage is not presently constitutional right, advocates of same-sex marriage will have to rely on the democratic process to legalize same-sex marriage at the state level or they will have to pass a constitutional amendment mandating recogniztion of same-sex marriage everywhere. If they cannot, too bad. That is democracy.

    NB – I went to High School in New York City, where you could not drive under 17. Some of my classmates absolutely did get tickets when they drove on out-of-state licenses under 17.

    A state certainly could exclude automobiles which do not meet its emission standards from operation within its borders, to the extent not pre-empted by Congress excersing its intersate commmerc authority. Just because the idea is impractical does not make it unconstitutional.

    Reply
  13. Jon
    Jon says:

    Well we can agree to disagree. I get what you are saying as far as guns (drugs don’t work because the Cali law is by definition illegal). However marriage license to work from state to state and to ban this one type would be discrimination.

    If there wasn’t a real concern by the anti-gay rights groups, this law wouldn’t have a need to exist because states could decide on their own. We have gotten really away from the initial topic at hand & I’ll leave it at that and go on to the next topic.

    Reply
  14. Robert Feldmeier
    Robert Feldmeier says:

    We agree that Congress choose to treat same-sex marriages differently than traditional marriages with the Defense of Marriage Act. Congress has the power to do so. Unlike race or religion, for example, sexual preference is not a protected category under the Constitution because it is not a class mentioned in the constitution. Therefore, Congress may exercise its authority to define the effect (none) of out-of-state same-sex marriage licenses without offending the constitution because it has not touched on a protected class. While you may not think Congress acted fairly, that doesn’t make Congress’s action unconstitutional. There are all sorts of statutes which “discriminate” or “aren’t fair” – ie, treat one class of person differently than another. Social Security, for example, discriminates against the young on the basis of age (we’re paying for it and it won’t be there for us). Medicaid provides free health care to the poor but denies free healthcare to the rich (discrimination on the basis of wealth). The income tax is progressive – not everybody is treated “equally” by it. There is no constitutional bar to statutes which discriminate on the basis of age or on the basis of wealth because these are not classes mentioned in the constitution. Similarly, there is no bar to a statute which treats one sexual preference different than another because sexual preference is not a class mentioned in the constitution.

    NB – marriage licenses do NOT work from state to state or country to country where a union that is legal in one state is void in another on any important public policy grounds – not just that of sexual preference. For example, if Utah were to re-legalize polygamy, the second marriage would be totally void the second the polygamist set foot in any of the other states in the Union.

    Reply
  15. anonymous
    anonymous says:

    i didn’t hear the rabbi’s speech but did enjoy reading this piece.

    do you think the rabbi might have been arguing that people should have a fundamental right to both marriage and healthcare? i think some people think constitutions should include positive rights and some might argue those positive rights should include both the right to marry any person and the right to healthcare. i think the south african constitution includes a right to health care.

    Reply
    • Robert Feldmeier
      Robert Feldmeier says:

      That could be her argument. However, were I she, I would not be focused on either issue. Presently, in the American Jewish community, a majority has not even the vaguest idea of what it means to be a Jew, how Jewish morality is different from Christian morality, or even what our major holidays are. Perhaps instead of theologizing her political opinions, Rabbi ought to focus on the basics.

      Reply

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