Q&A: Adoption by a Same-Sex Couple
Adoption by a Same-Sex Couple
Question
What do you think about this week’s Supreme Court ruling allowing same-sex couples to adopt, and offering an expansive interpretation of the phrase “a man and his wife” in the wording of the law?
Answer
I haven’t seen the details, but on the face of it this sounds very reasonable to me. Nowadays this is considered a relationship like any other, and therefore when people speak about a couple, it is certainly reasonable to interpret that as including a same-sex couple as well.
Discussion on Answer
I don’t know the wording of the law, but even if it says man and woman, interpretation is not always literal. One interprets it as meaning a couple, and that’s it. Completely reasonable.
The wording of the law is “a man and his wife.”
The question is whether a non-literal interpretation of the term is reasonable only if you assume, as a value judgment, that same-sex relationships are legitimate.
In other words, in this case can one say that the Supreme Court imposed its personal view of the institution of marriage onto the wording of the law?
Almost every interpretation assumes premises drawn from the interpreter’s own world. That is true in halakhic and Talmudic interpretation as well, and in any interpretation whatsoever. Anyone who thinks it is possible to stick to the wording of the law without introducing additional assumptions is naive. This is the question of judicial legislation, and I discussed it at length in my book The Spirit of Law.
Beyond that, the Supreme Court did not impose its personal view on anyone (what does “personal” even mean? There are quite a few justices there). It is assessing that this is the norm accepted today by the public, and therefore it interprets the wording of the law accordingly. If this is indeed the view accepted by the public, then in principle even a thoroughly conservative panel should have ruled that way.
Hashyo,
The Interpretation Law states that “what is said in the masculine form also includes the feminine form, and vice versa.” This time the Supreme Court’s ruling fits the law very well. Apparently one could also have defended the opposite ruling, but there is no activism or coercive imposition of a worldview here (Alex Stein would not rule based on such considerations).
The Torah says, “If one man’s ox gores his fellow’s ox.” In your opinion, can one on that basis hold liable the owner of a dog or a chicken that caused damage? In the literal interpretation it speaks only about an ox.
Even if it had said same-sex / bisexual / male-and-female couples, it still would have been possible, in my opinion, to interpret it reasonably as including gay men, lesbians, and all the family variations that are happily being renewed upon us every day. So if the legislator specifically meant heterosexual couples, he would have had to write in the plainest possible language: *the phrase “a man and his wife” here is intended to exclude homosexual couples and the like, so please, Your Honor, don’t start interpreting this for me*?
I’m not sure that was necessarily the legislator’s intention here; I’m just trying to understand how far the precision has to go in order to prevent a far-reaching interpretation by an overly activist judge, heaven forbid :).
As for the ox, it is accepted that there are interpretive principles by which the Torah is expounded (though I don’t know whether they were given at Sinai or come from the Sages), so we agree that there is a paradigm from which we derive rules for other matters. That is not the case with the Israeli statute book, which doesn’t arrive with thirteen interpretive principles attached. There, if it says “a man and his wife,” one may reasonably assume they meant a traditional couple, and in general judges should narrow the interpretive space as much as possible.
Even with a text that doesn’t come with formal interpretive principles, you still apply the logical ones to it, such as a fortiori reasoning, paradigm reasoning, and so on. That happens every day.
By the way, the law actually does come with interpretive principles, in the Interpretation Law.
Got it, thanks. Good to know.
Rabbi,
In my opinion, the example of the goring ox is not similar, because there there is no reason to assume that the writer specifically meant an ox and not a horse or a dog.
That is not so with “a man and his wife,” where there is a strong rationale for saying it was meant specifically, and knowing the legislators’ environment there, it is hard to assume they would have allowed trans-LGBT relationships.
Here is a very similar ruling from last night in its interpretive approach
https://www.israelhayom.co.il/news/law/article/15097525
Interesting that Mintz was not willing to use a midrashic interpretation here, according to which the legislator’s intent in the statement by Rabbi “someone with a reasonable level of Torah knowledge” was that people should dress warmly…:)
Talking about “a couple” is not the same as talking specifically about “a man and his wife.”
“Reuven is Shimon’s partner” is indeed a common sentence today,
whereas “Reuven is Shimon’s wife” is not acceptable and could even be offensive.