ISRAEL VS US:

Two stories today on the rights of gay and lesbian people to be adoptive parents, both based on each respective country's supreme courts. First Israel

w w w . h a a r e t z . c o m
Lesbian couple get okay for adoption
By Yuval Yoaz

In a landmark decision, the Supreme Court decided in a 7-2 ruling yesterday that two lesbians who have been living together for 15 years will be allowed to adopt each other's children.

The women, Tal and Avital Yaros-Hakak, have had three children in the last 15 years, all with the assistance of a sperm bank.

In 1997, they petitioned the Ramat Gan Family Court seeking the right to adopt each other's children and court recognition of their joint parenthood. The court rejected the petition, but did grant them guardianship of each other's children, a precedent that has since become the norm.

Yesterday, the Supreme Court returned the case to the family court, instructing it to consider whether adoption would be "for the welfare of the child," as required by law.

The women's earlier appeal to the Tel Aviv District Court had also been rejected, by a two-justice majority over a minority opinion issued by Judge Saviona Rotlevi, who wrote, "The need to provide the children and the family unit in which they are growing up with a legal framework is in accordance with the court's obligation to create social norms and take a firm stand against the intolerance of portions of society for those who are different."

After the Supreme Court ruling, Avital said, "It is no simple matter to decide to live life like this rather than to hide, to find a partner and to bring children into the world in this kind of family unit."

Both Tal and Avital have doctorates. Tal heads the Social Work Department at Tel Aviv University and Avital is a cancer researcher at a Health Ministry facility. The two women signed a joint-life agreement that merged their property. Their three children were born from anonymous sperm-donors. The children know who their biological mother is but treat both women as mothers.

Avital said yesterday that the family court had been swift to grant them joint guardianship over the children and that this had given them the courage to press their case further. "Nevertheless, we were afraid that if the ruling were negative, this would mean that other couples would not stand a chance," she said yesterday.

Tal said the two had encountered occasional problems since the children were not registered on both mothers' ID cards. "The main significance of today is the ruling that our children have two mothers," she said.

In the appeal to the Supreme Court, presented by attorney Ira Hadar, the mothers did not ask to be recognized as "a couple" or a single-sex family, but to be allowed to adopt each other's children "for the sake of the child" and "under special circumstances."

In its ruling, the court wrote that it was not granting the couple legal status as a family. "We are not ruling that a single-sex couple are `a man and wife together,'" court president Aharon Barak wrote on behalf of the majority. "The decision to return the case to the family court is not a recognition of the status of the same-sex family unit," added Justice Yaakov Turkel.

Reactions to the decision were strongly polarized.

Shas chairman Eli Yishai called the ruling a "a disgrace, and a black mark in the history of the Jewish people." He said that, "the court's ruling tramples on the Jewish family unit and rips away the distinction between the Jewish people and the rest of the world." Yishai said that such rulings "will make the judiciary on every level into an abomination in the eyes of the people, and will reveal the lack of a connection between the nation and its judges."

National Religious Party MK Zevulun Orlev said that the court's decision was an affront to Jewish family values and that the court favored gay and lesbian rights over the welfare of the child. MK Nissan Slomiansky, also of the NRP, said that "the court has shown it will not only separate the people from its land and country, but will stamp out the basis of the Jewish family."

Yahad MK Yossi Sarid said that, "Parental rights must be preserved for every couple, without excluding the many homosexual and lesbian couples."

Shinui MK Ilan Liebowitz said the court decision was "a brave step that reveals a degree of enlightenment not possessed by the government or Knesset."

The New Family organization - a legal advocacy group which focuses on groups it considers to be treated unfairly under Israeli family law - called the court decision "revolutionary."

"One speaks of a revolution in the legal world more than in the real world, because the reality has existed for a decade or more," the organization said in an announcement following the ruling. "We hope the court will remove all obstacles faced by the homosexual and lesbian community."

AND HERE IN the United States:

High Court Won't Review Gay Adoption Case
By David G. Savage
Times Staff Writer

5:47 PM PST, January 10, 2005

WASHINGTON — In a setback for the gay-rights movement, the Supreme Court refused Monday to hear a challenge to a unique Florida law that bars gays and lesbians from adopting children.

Lawyers said it is the only state law that flatly prohibits gays and lesbians from adopting children, although Mississippi bans adoptions by same-sex couples. It was enacted in 1977 when singer Anita Bryant led a statewide campaign against homosexuals.

But Florida does not prohibit gays and lesbians from caring for foster children, and its ban on formal adoptions was challenged as irrational and unconstitutional by several gay men who cared for foster children.

Steven Lofton and his partner, Roger Croteau, took in two infants in 1988 who had tested positive for HIV, and they have reared the two, who are now 17.

Their lawyers pointed out that the state encourages people who are single to adopt children. And it permits former drug abusers, felons and child abusers to be adoptive parents, they noted. Still, more than 3,400 children in Florida are in need of adoption.

By contrast, gays and lesbians are barred from adopting regardless of their record as parents or providers of foster care. The Child Welfare League of America supported the challenge and argued that it was a mistake to exclude a group of willing parents.

For example, under the state's law, "a beloved aunt who is a lesbian could be passed over in favor of complete strangers for a child whose parents have died," the group said.

Nonetheless, the justices issued a one-line order refusing to hear the Florida case, known as Lofton v. Florida. It was one of 426 appeals denied review Monday..

Mathew D. Staver, the president of Liberty Counsel, a pro-family advocacy group based in Orlando, Fla., defended the state law and praised the court's action.

"Adoption is a privilege, not a right," he said. "Common sense and human history underscore the fact that children need a mother and a father." The state's ban on adoptions by gays "serves the legitimate purpose of preserving the traditional model of the family," he said.

The high court gave no reason for refusing to hear the case, and it was unclear whether its action would have an effect elsewhere.

States would be free to enact new restrictions on adoptions, but experts say most state agencies are in search of willing and reliable people to take in abandoned children. While state agencies seek married couples as the ideal for placing abandoned children who need a home, they have tended to favor good caregivers regardless of their marital status or sexual orientation.

"There are astonishing numbers of gay people who are raising special-needs children around the country," said Matthew Coles, director of the Lesbian and Gay Rights Project of the American Civil Liberties Union, which filed the appeal in the Florida case.

He said he was disappointed and not sure why the high court turned away the appeal. In a pair of recent rulings, the justices have struck down state laws that discriminated against gays and lesbians and said that " moral disapproval" of homosexuality was not an all-purpose justification for state bias.

In 2003 in a case called Lawrence v. Texas, the court in a 6-3 decision struck down state laws that made sex between gays a crime.

"If I had to guess, I would say they looked at this case and figured that Lawrence came down only 18 months ago, and they wanted to follow their usual practice of letting the issue percolate for a few years before they take it up again," Coles said.

Florida's ban on gay adoptions was upheld by a federal judge and by the U.S. court of appeals in Atlanta on a 6-6 vote.

Home from Israel. The big domestic dispute that makes the paper is Sharon's resolve to withdraw from Gaza and parts of the West Bank. Far-right rabbis are encouraging soldiers to disobey orders, using religious justification. Here is what our Rosh Yeshivah, David Ellenson writes:

Forward Forum
The Other Rabbinic View on Withdrawal
By DAVID ELLENSON
January 7, 2005

There has been a great deal of Israeli rabbinical opposition to the Sharon government's current plans for territorial disengagement from Gaza and parts of the West Bank. Hundreds of rabbis have signed advertisements in the Israeli press claiming that such return is forbidden on the grounds of a talmudic passage that prohibits the surrender and demands the defense of any "city situated on the border." After all, should such a city fall into non-Jewish hands, the Jewish nation might be subject to conquest. These rabbis contend that Jewish law therefore prohibits the return of even a single settlement in Judea-Samaria or Gaza, as they hold that each one is essential for defense of the state. The sanctity classical Jewish religious thought attaches to the Land of Israel only serves to reinforce and legitimate their opposition to current Israeli governmental policy. These rabbis claim that Judaism maintains that the return of even a single meter of territory constitutes a grave sin.


The rabbinical opponents of disengagement advance their position with such absolutism and intensity that many people are led to conclude mistakenly that Jewish law countenances only one position on this matter. This is unfortunate because Jewish legal interpretation on this matter is not monolithic, and other rabbis have advanced arguments that display much greater flexibility on this question.


Rabbi Ovadiah Yosef, the spiritual mentor of Shas and former chief Sephardic rabbi, is foremost among these rabbis. His legal writings are models of erudition and clarity, and on this subject he has put forth a supple opinion that is worthy of public attention. In a region of the world where religion and politics are intertwined, the religious and cultural sensibilities his writings display provide a powerful warrant for the position that Judaism places the safety of the people over the holiness of the land.


In an article published in the journal Torah She'b'al Peh, Rabbi Yosef struggled at the outset with the issue of how to reconcile two significant commandments — one affirming sanctity of settlement in the Land of Israel (Mitzvat yishuv eretz yisrael) and the other addressing the saving of human life (Mitzvat pikuah nefesh). While the holiness attached to settlement in the Land of Israel is a commandment of considerable importance, Rabbi Yosef asserts that rabbinic tradition assigns even greater weight to the mitzvah of pikuah nefesh and the sacredness of life. As it says in the Torah, "And you shall observe my statutes and judgments, which, if a man should do them, he should live by them." Thus, Maimonides writes, "The laws of the Torah were given only to bring mercy, kindness, and peace into the world."


Rabbi Yosef then turns to the category of the "city situated on the border" itself. Basing himself upon a reading of Jewish legal authors as diverse and authoritative as Maimonides and Rabbi Joseph Caro in the Shulhan Aruch, Rabbi Yosef states that "in our day," when Israel can boast of a powerful army and possesses fighter aircraft, the fear of conquest that formerly animated the law is no longer relevant. Rather, this law is actionable today only insofar as surrender or non-surrender of a city involves pikuah nefesh, a saving of life. Consequently, Rabbi Yosef writes that if the political and military leaders of the state are convinced that such return poses no danger and that such exchange will cause the Arabs to establish a genuine "covenant of peace — brit shalom with us," then it is surely permissible for Israel to return parts of Judea, Samaria, and Gaza to the Palestinians for "pikuah nefesh takes precedence over land." If an exchange of land means "peace is attainable between us and our Arab neighbors," then the land must be returned, "for nothing is more important than the saving of a life."


As further support for the primacy Jewish tradition accords pikuah nefesh, Rabbi Yosef cites a famous anecdote concerning Rabbi Hayyim Soloveitchik of Brisk, the legendary early 20th-century Eastern European Talmudist. According to the story, several people said to Rabbi Soloveitchik that if the destruction and carnage of World War I would bring about redemption, then perhaps the war would have been worthwhile. Upon hearing this, Rabbi Soloveitchik responded by saying, "If the question came before me and it was demonstrated that through the loss of one innocent Jewish life the messiah would come, I would unhesitatingly rule that it would be better that the messiah not come. For the commandment of pikuah nefesh takes precedence over all the other commandments contained in the Torah."


For Rabbi Yosef, like Rabbi Soloveitchik, the weight Jewish tradition assigns to the saving of life is of supreme import. If, in the judgment of the government, such return would lead to a peace that would not compromise the security requirements of the state and its citizens, then it is a religious commandment to authorize such return. The holding of Rabbi Yosef on this question of "land for peace" stands in stark contrast to that of the rabbis who elevate Jewish sovereignty over the West Bank and Gaza above the saving of human life. In making the case as he did, Rabbi Yosef has offered a legitimate Jewish religious stance that can be applied to the question of disengagement from parts of our ancestral homeland. His writing on this matter deserves serious consideration in the current Israeli religious-political context.




Rabbi David Ellenson is president of Hebrew Union College-Jewish Institute of Religion.





Copyright 2004 © The Forward

Wednesday morning (I think). It's hard to keep track of time because I've been tourin without a watch or a calendar. In a way it's been nice to lose track of time given that I live by the watch at home.

The ping-pong of emotion is quite difficult to deal with...the thrill of being in Israel, the confusion over all that goes on here politically, and then the awesome power of nature that for good inspires and for bad terrifies. I've been reading one story, about Nate Berkus and his partner, a famous fashion photographer. It is one of many, many stories...his partner was first referred to in the media as his "traveling companion"but now is publically being referred to as his partner. I can't imagine what the feelings of Nate are--multipled by thousands of the terrible pain suffered by the famous and the unknown, the top of society and the lowest rung, the richest and the poorest, the most powerful and the powerless. That is nature. Completely egalatarian.

The faces of the children make me melt. I want to reach out and hold them and hug them and tell them it would be okay...but missing parents, brothers, sisters, or entire families, what can one say to them? What could one say to a survivor of the Holocaust who was similarly situated? There are no words.

People often ask where is God when disasters like this strike. It is easy to look to the absence of God when the natural world turns wild, but it is also fair to look to God in the response of humanity to other human beings, really people that are completely unknown to them. Perhaps it is a reminder that humanity does reflect God and can act as God's partner in the world, to heal and to comfort.

On to Tel Aviv. . .

Shalom from another day of rain in Jerusalem. The wind is blowing, Yuval is under the weather, and I'm just hanging in Jerusalem visiting with folks. So far the trip has been uneventful, which is a good thing. I've really enjoyed reconnecting with my teachers and mentors here in Jerusalem--they got the ball rolling on my rabbinic education and they made a difference. Still, I wish my Hebrew, with all of its improvements, was still better. As we say "la-at, la-at" translated as slowly, slowly.

It's been especially good connecting with students in the Israeli program. The movement will benefit greatly from them in the future.

Last night I saw my friend Yisrael CAmpbell do his comedy show in Baka, a Jerusalem neighborhood south of here. It was great...some of his humor will definitely translate to an American audience in the States, but a lot of it was Israel specific. He's a new father of twins!!!!

Off to more adventures....

Motzei Shabbat, Jerusalem.

What an incredible corner of the world that seems so out of control. In what to most Americans may seem as an incredible irony, Jerusalem is one of the most peaceful places in the world on Shabbat. This morning when I walked from Rehavia to the German Colony to shul all you could hear (besides the rare vehicle) were birds. All kinds of birds making all kinds of noise. Quiet, peaceful, warm...walking home was the same. And the light, that beautiful sunlight on the Jerusalem stone. Friday was very warm and the people came pouring out....Jerusalem now has more cafes and shops then when I was here a couple of years ago. There is hope.

The joke I like best is that they Nobel Committee wants to give Arafat another peace prize, this time for dying. Not a bad idea....

Lunch today was at my friend's home with whom we're staying in Rehavia that Yuval made...and even though it was a beautiful day, we slept through the afternoon because Shabbat is Shabbat. After sundown and havdalah, Yuval went off to downtown Jerusalem to a coffee shop where he will have his latte (very frugal) and read the rest of the weekend papers.

We were going to rent a car to travel around the country, but it is too expensive! So we'll do plan b....whatever that is. Probably take the bus (the inter-city bus) to Tel Aviv.

Shavua tov,