There is serendipity in the timing of this week’s Torah portion. Pinchas is a portion ends the saga of the seduction of the Israelites by the Midianites, specifically the men. Last week we read about the eponymous priest who killed a woman and her Israelite lover. As the event lies down we are introduced to a man, Zelophehad, as part of a list of genealogy. Then he promptly dies. His daughters, Mahlah, Noa, Holga, Milcah, and Tirza find themselves without brothers. According to the law they could not inherit their father’s property. Women could not inherit. These women were unmarried; however they were strong, smart and loved their family. They didn’t want their fathers name lost. They petitioned Moses and the High Priest Elizear to allow them to inherit. They argued that their father was not one the rebels with Korach, he died a good man even if he died for “his own sin”. He deserved to have his legacy continue. Moses asked God and God tells Moses to allow them to inherit, changing the Torah law for a situation that was not anticipated. Now we can discuss about how God might have known this and this was a growing pain the people needed to endure, but that is not the point. While still in the wilderness changed the law for an important circumstance and made the law more just, and more in the concept of what the Torah is suppose to be.
So this week when the Supreme Court struck down the Defense of Marriage Act (DOMA) I was reminded of this moment only to find it was in the Torah portion we read yesterday. DOMA was an attempt to define marriage for federal purposes as between a man and a woman. I remember when President Clinton signed it that I was angry. It was written by far right Republicans to do two simple things. 1. To maintain state’s rights in marriage, thus allowing a state to not only allow a two people of the same-sex to marry legally but also to protect other states that didn’t want to recognize the other state’s status. (this is still legally in effect). 2. Prohibited the Federal government from recognizing marriage as other than one man and one woman. This was to protect the Federal government from being forced to follow a single state’s change in definition. (this is the part that was struck down). The Supreme Court ruled that the second part of DOMA was problematic because people who were legally married could not be held in a different legal status by the federal government based on their gender. Edie Windsor brought a law suit because she had to pay inheritance tax that she would be exempt from if her spouse, Thea Spyer, who died in 2009, had been a man. It was another inheritance that the Federal Government was standing in the way of the wishes of a family. Like the daughters of Zelophehad, Edie Windsor wanted to have her share in the not only the estate of her family member but wanted the symbolism of the meaning of the relationship. The Torah had devalued daughters and DOMA had devalued same-sex couples. In that justice was not served and the law had to meet with justice.
The amending of the Torah law is surprising but understanding in that I believe throughout our history the Torah was a work in progress. Certainly we spend a great deal of time explaining the meaning of the words of Torah. Here is just a sample of commentary on the question of why Moses had to ask God to solve the question:
Bamidbar Rabba: God concealed this simple law, one that even a child could have figured out, because Moses had acted arrogantly when setting up the legal system. He told the Israelites, any case that was too difficult for the lower courts should be referred directly to him. He did not allow for the fact that in such difficult cases, hehimself might be required to consult God.
Targum Jonathan: Moses knew the correct decision. When he heard that none of the lower courts knew what to do with this interesting case, and that each one had referred it on to a higher court, Moses thought, "I will do the same. I will refer the case on to a Higher Court." Thus, Moses taught the judges for all future generations not to hesitate in consulting a higher authority whenever in doubt.
Oznaim LeTorah: Moses decided the case against the women when he first heard it. The women made a highly intelligent statement, proving that his decision was wrong, and trapping them into disinheritance no matter how it was argued. Moses was forced to admit they were right. He had acted presumptuously in ruling against the women's right to inherit property. He had to publicly apologize for his hastiness and seek God's opinion in the matter.
Sifrei: Moses knew all along that daughters inherit their father's possessions if there is no male heir. He was not so sure in the case of Zelophehad, however, because he had been a firstborn. Moses figured that under the laws of the firstborn, Zelophehad should receive a double portion. Since the case involved land ownership in Israel, and they were not yet in possession of the land, Moses was unsure if the law really applied in this case.
Zohar: Moses was unsure of the case because he did not know if Zelophehad's sin had been pardoned in Heaven. He thought that God might not want to grant this man's daughters any portion of the Promised Land. God's reply indicated that Zelophehad's sin had, indeed, been pardoned.
Sefarim: When the daughters of Zelophehad brought their case before Moses, they told him that their late father had not been among the company of Korach, those who had challenged his authority to lead. They informed Moses that their father had not been among his many enemies. Moses therefore felt a personal interest in their welfare. He disqualified himself from the case and made no ruling at all. He took the case directly to God for a decision.
Tosefta to Baba Batra 115: In referring to the daughters of Zelophehad, the Torah uses the word lahem, in the masculine form, rather than lahen, in the feminine form (Numbers 27:7). When a woman assumes an inheritance, she is like a man for all legal purposes. Therefore God commanded that the women should be given an inheritance, as if they had been men, and the verse refers to them in masculine, rather than feminine gender.
Rashi: God ruled that the daughters not only received their father's portion, but they were entitled to another equal portion because he was the firstborn male in his family. God then went on to make clear the laws of inheritance which had been spoken at Mount Sinai.
Baba Batra: God told Moses to advise Zelophehad's daughters to marry men from their own tribe of Menashe. Eventually, they did find worthy husbands, married, and had children. Usually women of their age could not have children, but God was so proud of how intelligently they had argued their land case before the court of Moses, they were granted a special miracle to have children beyond their normal years.
This is from TorahProductions.com
You can see that it is a lot of ways to look at one simple question that this Torah portion brings up. We can see that we are not a static culture and neither is our country. Gay marriage, marriages blessed by many branches of religion, by a growing number of states, and in minds of the younger generations. Gay marriage will be the norm in our lifetime and many will support the decision by the Supreme Court.
Including the Orthodox Union, who pleasantly surprised me with this statement:
Including the Orthodox Union, who pleasantly surprised me with this statement:
“In response to the decisions announced today by the United States Supreme Court with reference to the federal Defense of Marriage Act and California’s Proposition 8, we reiterate the historical position of the Jewish faith, enunciated unequivocally in our Bible, Talmud and Codes, which forbids homosexual relationships and condemns the institutionalization of such relationships as marriages. Our religion is emphatic in defining marriage as a relationship between a man and a woman. Our beliefs in this regard are unalterable. At the same time, we note that Judaism teaches respect for others and we condemn discrimination against individuals.
We are grateful that we live in a democratic society, in which all religions are free to express their opinions about social issues and to advocate vigorously for those opinions. The reason we opt to express our viewpoint in a public forum is because we believe that our Divine system of law not only dictates our beliefs and behaviors, but also represents a system of universal morality, and therefore can stake a claim in the national discourse. That morality, expressed in what has broadly been labeled Judeo-Christian ethics, has long had a place in American law and jurisprudence.
We also recognize that no religion has the right to dictate its beliefs to the entire body politic and we do not expect that secular law will always align with our viewpoint. Ultimately, decisions on social policy remain with the democratic process, and today the process has spoken and we accord the process and its result the utmost respect.
The Orthodox Union is proud to assert its beliefs and principles in the public forum, and will continue to do so in a manner that is tolerant and respectful of all of our nation’s citizens, but which is also authentically based upon our sacred ancient texts and time-honored traditions.”
There is a change happening and there will be more discussions of gay marriage, but we can think of the daughters of Zelophehad. Like Mahlah, Noa, Holga, Milcah, and Tirza, Edie Windsor challenged the status quo and won. These women all sought justice and found it. They all give us hope.