On the day of the funeral of Yitzĥak Rabin I was asked by some Internet friends to teach some mishnah, as is customary in a house of mourning. That ad hoc teaching was maintained by popular request and gradually the small group of friends has grown into a large corpus of about one thousand committed Conservative Jews who study mishnah daily with me on-line via the Internet. We started off with tractate Kiddushin, then moved on to tractate Berakhot. The third tractate we studied was Sanhedrin. By April 1999 we had reached Sanhedrin 7:4 which contains a list of those offences whose punishment (under appropriate circumstances) is death by stoning. Among the items in that list is copulation between two males. Now the participants in the Rabin Mishnah Study Group are not just passive learners; they ask questions and make comments. On April 16th 1999 I wrote in my daily shiur:
I do not recall a topic discussed on RMSG that has produced so much in my mailbox as our present discussion on homosexuality... I cannot possibly answer all this mail personally, nor can I utilize it all as part of our discussion. Therefore, I shall continue my rather elaborate response to the original question ... and I hope that most people will find in my response some of the clarifications they are seeking...
As far as one subscriber was concerned my judgement against personal correspondence was firmly ignored. Via e-mail, David (this is not his real name; he has a right to his privacy) introduced himself to me as a young gay man (he was about 20 at the time). He came from a committed Conservative Jewish family in the USA and was himself religiously observant. He told me that he laid tefillin every day, never rode on Shabbat, never ate anything but kosher outside his home and so forth. He and his sister often read from the Torah in their local synagogue. No one knew of his sexual orientation, not even his close family, and despite my urgent prompting he refused to approach his local rabbi to open this discussion with him.
His e-mails to me showed how much he suffered from the fact that his natural inclinations seemed to him to be damned by the Torah. He tried so hard to be a good Conservative Jew, out of inner conviction; how could it be that he was branded by the very tradition that he so cherished as a perverted sinner? He was not challenging me; he was not tub-thumping on a soap-box; he was begging me, pleading with me, to resolve for him his soul-searing dilemma. He wanted to be accepted for what he was.
When he was about 14 or 15, in the family collection of books David had found Hyman Goldin's translation of Ganzfried's Kitzur Shulĥan Arukh [Hebrew Publishing Company, New York, 1961] There he had found Chapter 151 and it had devastated him:
It is forbidden to discharge semen in vain. This is a graver sin than any other mentioned in the Torah. Those who practice masturbation ... not only do they commit a grave sin, but they are under a ban... Occasionally, as a punishment for this sin, children die young...
It was not until he wrote to me at that time that he confided to anyone that he still masturbated and that the only erotic images that he could summon up were male. Our correspondence has continued intermittently to this day; he writes whenever he has a query.
David related that during the years of his adolescence he had "fallen in love" several times, but had never even dared to approach any of these objects of desire since he had no way of telling whether they were like him or not and he was afraid of how they might react to his advances. Thus, at a time when all his school friends were developing friendships and experiences with girl-friends he was condemned to a lonely and secret love affair with his strong right hand. In college the inevitable happened: he found another young man who was just like him and they became firm friends. Through his connection with David, Jonathan (obviously, this too is not his real name) also began to be religiously observant, and soon their friendship developed into something much deeper and much more meaningful. To make matters even more complicated David discovered another love: the teaching of Judaism. His passion for our tradition and its learning was so strong that he decided that he wanted to go to rabbinical school...
Another regular contributor to RMSG (right from the very beginning) was a woman then in her 40's. Let us call her Chérie; (you must have guessed that this is not her real name either). Chérie was a lesbian already living with her partner in New York. Chérie too was a staunch Conservative Jew, very active in her local synagogue. Unlike David, Chérie was full of anger and rancour against the Conservative rabbinate. Too many rabbis, she claimed, were "making sympathetic noises" but not actually doing anything to ease the plight of religious gays. No doubt I was included in that category, though she was far too polite to actually say so. During the years that have passed I have lost contact with Chérie, but the memory of her bitterness has prompted me to include female homosexuals in this paper, even though it was initially prompted by my e-mail discussions with David. Maybe one day she will see this preface and recognise herself; perhaps I shall have redeemed the Conservative rabbinate in her eyes.
Out of my e-mail discussions with David (with a few from Jonathan added in for good measure) has grown this paper. David and I have never met and for all I know we never shall. But he has bared his soul to me, and I hope that through the rabbinical "jargon" the anguish of his tortured soul is to be perceived. David was not interested in platitudes and generalities. He wanted to know what classical halakhic Judaism had to say and to what extent a modern Conservative understanding of halakhah could accommodate him, if at all. David was interested in "shas and poskim" rather than re-interpretations of biblical texts. This suits me!
This paper consists of two parts. Part one was written with David (and Chérie) in mind; part two is addressed more to my rabbinical colleagues. Part one is addressed primarily to David (and Chérie) with my rabbinical colleagues reading over their shoulders; part two is addressed to my rabbinical colleagues with Chérie and David reading over their shoulders.
Rambam originally wrote a magnum opus, Moreh Nevukhim, the Guide for the Perplexed, as a letter to one of his students. In a prefatory message he wrote:
בהיות שאתה התלמיד היקר .... כאשר עמדת לפני ובאת מקצוי ארץ ללמוד אצלי גדלה מעלתך בעיני... וראיתיך שכבר קלטת משהו מן הענינים האלה מזולתי, ואתה נבוך והחלו בלבך הסוסים, ונפשך הנכבדה דורשת ממך למצא דבר חפץ... וכאשר גזר ה' על הפרידה ופנית לאשר פנית עוררו בי אותם הפגישות יזמה שכבר שכבה בי, ועוררני העדרך לחבור מאמר זה אשר חברתיו לך ולדומיך ... ואתה שלום.
My honored pupil ... when you came to me from a distant land to study under my guidance, I had a high opinion of you... and I saw that you had already acquired some smattering of this subject from people other than myself. You were perplexed, as stupefaction had come over you, and your noble soul demanded of you to find out acceptable words [Ecclesiastes 12:10]. When God decreed our separation and you betook yourself elsewhere, these meetings aroused in me a resolution that had slackened. Your absence moved me to compose this Treatise, which I have composed for you and those like you... Be in good health.
[The Hebrew text is from the version translated into Hebrew by the late Rabbi Yosef Kafiĥ, slightly edited. The English is from the translation by Shlomo Pines, also slightly edited.]
I hope it will not be considered too precocious if I too suggest that this paper be understood to a certain extent to be a letter to David. After all, I am "hanging myself on a very great tree" [cf. Bavli, Pesaĥim 112a and Rashi ad loc]. Because the material offered in this paper is also a kind of letter to a kind of student I have called it
Quite some time ago there was a discussion among the rabbis on an Internet forum for Conservative Rabbis concerning the permissibility or otherwise of performing a "marriage" ceremony for a same-gender union. I concluded my contribution to the discussion thus:
We must actively seek a halakhic solution that would not ignore a prohibition that is still viewed as mi-de-orayta [i.e. that it has the force of a commandment of the Written Torah] (though I do believe that another view is possible), but that also would not effectively ostracize homosexuals and condemn them to aginut [i.e. a situation in which a person may not marry or have a sexual relationship with another because of their halakhic status, a status which cannot be righted by them.], and that would also be a solution that the vast majority of the members of the Rabbinical Assembly could "live with". If I had the time and the creative halakhic competence that is exactly what I would do.
What follows is my attempt to redeem the undertaking implied in that last sentence.
I offer the following statements as being truisms.
- Homosexuality is a variation in human sexuality in which emotional and sexual attraction are directed towards persons of the same sex and not of the other sex. It is not clear whether the etiology of this variation is genetic inheritance or acquired conditioning in infancy. What is clear is that gays - like "straights" - have no conscious control over their sexual orientation.
- Homosexuality is no longer seen by the medical profession as a mental illness, and is therefore not seen as needing treatment. Where attempts at the sexual re-orientation of gays are made, statistically the incidence of successful results is negligible and it quite often causes psychological harm.
- According to traditional halakhah, the Torah specifically prohibits anal intercourse, and other forms of sexual activity are also seen by the halakhic tradition (as heretofore understood) as being sinful.
- Despite the attitude of medical experts mentioned above, a large segment of modern society still views homosexuality as an aberration, with degrees of disapproval varying from mild distaste to verbal and physical abuse that include mayhem and murder. This means that generally speaking gays are reluctant to admit their orientation and suffer both mentally and emotionally from their situation; this suffering causes tendencies towards acute depression and even suicide at a rate far greater than that observed in society in general.
- In addition to the problems discussed above the gay Jew who would like to lead a rich and committed Jewish religious life is distraught by the fact that homosexual acts are sins according to the halakhic tradition as expounded heretofore.
At the beginning of the last decade of the 20th secular century the Committee for Jewish Law and Standards (CJLS) of the Rabbinical Assembly in the USA discussed several responsa concerning homosexuality and the Conservative Jewish community. The main provisions of a consensus statement based upon the responsa that were accepted were that homosexuals are to be welcomed into our congregations but may not be accepted into our rabbinical schools or into the Rabbinical Assembly, may not function as rabbis or as cantors, and that members of the Rabbinical Assembly should not perform commitment ceremonies for gay couples. With regard to synagogue honours, and other functions (e.g. teachers, youth leaders) each rabbi as mara de-atra (or marta de-atra) [local rabbinic authority] would decide the matter. There were dissident papers submitted, but only one of them was accepted, and the ultimate conclusion of that paper was that even though a major change was needed, the time was not yet ripe for such a change.
Of the responsa that were accepted two from that period [adopted by the CJLS on March 25th 1992] should be noted. Rabbi Joel Roth's responsum thoroughly discussed the etiology of homosexuality and halakhic considerations. The ultimate conclusion reached by the respondent is that being homosexual is no sin, but homosexual behaviour is sinful and that halakhic tradition requires the homosexual person to commit himself or herself to celibacy.
This responsum of Rabbi Joel Roth came under intense criticism in the noteworthy dissident responsum of the period, by Rabbi Elliot N. Dorff, who made some perceptive comments concerning this ultimate conclusion of Rabbi Roth's responsum:
Rabbi Roth's legal formalism is bad enough intellectually, but here the results of that method lead him ... to unbelievably cruel results... Since the vast majority of psychological literature on the subject attests, as Rabbi Roth admits himself, that psychological techniques are incapable of changing a homosexual person into a heterosexual one, Rabbi Roth is effectively - indeed, explicitly - asking gays and lesbians to refrain from sexual expression all their lives. That result is downright cruel.
There is no doubt that Rabbi Roth's conclusion parallels halakhic thinking in the Orthodox world which teaches that according to Torah (in the widest sense of the term) the ideal situation for a person with a homosexual orientation is committed celibacy. This is not the position taken in this paper. However, we must note that more and more Orthodox and ultra-orthodox respondents are adding to that conclusion a rider in some form or another whose effects could ultimately lead to practical conclusions rather different from those of our own CJLS. Rabbi Chaim Rapoport, a member of the "Cabinet" of the Orthodox chief rabbinate of Great Britain writes [in the Jewish Chronicle, London, UK, 11th February, 2000]:
... When counselling homosexuals it is unrealistic to expect prohibited behaviour to stop immediately. In the interim, we must help homosexuals avoid the pitfalls of promiscuity, despair and the various ailments to which they are vulnerable. Depression and suicide attempts among homosexuals are not rare occurrences. Rabbis, teachers and counsellors must be alert to these issues, and "not stand idly by" in matters of life and death.
Rabbi Aharon Feldman, at that time the dean of an ultra-orthodox Yeshivah in Jerusalem, writes [in a letter to a homosexual Ba'al Teshuvah, which was published in the spring issue of Jewish Action Magazine, 1998]:
A Jewish homosexual has to make a commitment to embark on a course where he will ultimately rid himself of homosexual activity. It is not necessary that he change his sexual orientation (if this is at all possible), but that he cease this activity. It is obvious that for many people this will be difficult, and will have to be accomplished over a period of time.
While I would have sought a more liberal expression, on its own terms Rabbi Feldman's point is well taken: in the overwhelming majority of cases it is completely impractical to expect the religiously motivated gay man or woman to suddenly adopt celibacy. In ninety-nine cases out of a hundred, for the religious gay person acutely felt present needs - emotional and social - must be addressed and given priority. We must hearken to "the voice of the boy where he now is"
[The biblical text is from Genesis 21:17. The rabbinical comment is to be found in Rosh ha-Shanah 16b. I include this note because even if in the Gemara the purpose of the midrash is the opposite of my present purpose, the conclusion is not so different.]
The Gemara expounds this verse by telling us that in judgment a person is assessed by his present situation. In which case, we should address the gay person's present needs from the halakhic point of view, and not what we might or might not consider to be his or her ideal behaviour.
Therefore, the purpose of this investigation is to determine possible halakhic parameters for those gays who will not embrace the celibacy postulated by Rabbi Joel Roth and the orthodox world, but who wish to remain active and committed Conservative/Masorti Jews in their religious orientation. Many of them are in extreme anguish because of the clash between their natural inclinations and the dictates of tradition as they have been taught them. In many instances it is a case of אוי לי מיוצרי ואוי לי מיצרי [Berakhot 61a] - they suffer from the perceived dichotomy between the demands of tradition and the demands of their nature. Many of these Conservative/ Masorti Jews want to play a full role in Jewish communal life and feel they are prevented from doing so by prejudice or well-meaning but outdated directives. This paper is not addressing the general issue of a halakhic attitude towards homosexual acts, but it is addressing itself to the specific needs of a religious gay person who identifies with the ideology and practices of Conservative Judaism and who wishes to live, learn, practice and perhaps teach this tradition. There is, therefore, much in this paper that will not be acceptable to a secular gay rights activist.
(i) Basic prohibitions
I Male Homosexuals
The term used in our classical sources to denote the major homosexual prohibition of the Torah is mishkav zakhur,משכב זכור [Berakhot 43b, Shabbat 17b, 149b, Sukkah 29a, Kiddushin 82a, Avodah Zarah 36b, Niddah 13b]. This term is now loosely understood as being the equivalent of "homosexuality", but this is quite erroneous. Mishkav zakhur refers to one specific act alone and to no other. The Written Torah specifically prohibits mishkav zakhur twice:
ואת-זכר לא תשכב משכבי אשה תועבה הוא
You shall not copulate with a man as one copulates with a woman: it is an abomination. [Leviticus 18:22]
ואיש אשר ישכב את-זכר משכבי אשה תועבה עשו שניהם מות יומתו דמיהם בם
If a man copulates with another male as one copulates with a woman, both of them have acted abominably; they shall be put to death... [Leviticus 20:13]
Rambam gives the following definition of mishkav zakhur:
הבא על הזכר או הביא זכר עליו כיון שהערה אם היו שניהם גדולים נסקלים שנאמר ואת זכר לא תשכב בין שהיה בועל או נבעל...
When one male copulates with another male ... from the moment of penetration ... both are punishable by stoning... [Hilkhot Issurei Bi'ah 1:14]
In modern times as well, this quasi anatomical definition is accepted. Here is part of a responsum by (Ultra-Orthodox) Rabbi Dr Mordechai Halperin, MD [Shaarei Tzedek Hospital (Shlesinger Institute for Medical Halacha), Israel. 1999]:
Mishkav zakhur, which is one of the worst averot [sins] in the Torah, refers to penetrative anal sex only. Make all your efforts, use all your koĥot ha-nefesh [spiritual powers], to keep from engaging in this type of sexual behaviour.
Rabbi Elliot N. Dorff implicitly concedes this same point, from the viewpoint of Conservative Judaism:
Anal sex is not the equivalent of homosexuality or even of homosexual sex. Both a homosexual orientation and homosexual acts are to be distinguished from anal sex acts, which are practiced by no lesbians, some gay men , and some heterosexuals. As a result, if anal sex is judged as abnormal in either a descriptive or prescriptive sense, it is that which we should discuss, not homosexuality or homosexual sex acts per se.
[Some people presume that sex between men will involve anal penetration. In fact, in relation to penetrative sex it has been found that between a quarter and a third of homosexual men have never had anal sex, either as the penetrative or receptive partner, and in recent years, since it has become clear that penetrative sex is a particularly risky activity with regard to HIV, quite a lot of men who previously had penetrative sex have altered their behaviour. - AVERT, 4 Brighton Road, Horsham, West Sussex, RH13 5BA, England. In a private poll conducted over the Internet in which more than 150 gay males voluntarily participated, about 30% of those sexually active reported that they did not practice anal penetration either actively or passively.]
Failure to make the distinction between the specific mishkav zakhur and the general 'homosexuality' is a major flaw in the responsum of Rabbi Joel Roth.
One colleague whose opinion I value very much challenged my assumption that what the Torah is prohibiting is anal penetration. He argued that perhaps it is penetration of the mouth that is meant. While it seems to me obvious that our halakhic tradition has always understood the penetration to be anal I take up the challenge. In order not to interrupt the flow of this paper I have included my response to his challenge as an addendum. [Click here to read the addendum.]
It is now clear that Halperin is correct is assuming that mishkav zakhur, based as it is on the biblical phrase mishkevei ishah, indicates anal penetration. If the Torah is prohibiting the specific act of anal penetration of one male by another; it follows that the two verses of the Torah are not a blanket prohibition of homosexuality. The gay male who scrupulously avoids anal penetration cannot be guilty of mishkav zakhur, and the opprobrium expressed in these verses cannot apply to him.
[Other Conservative respondents have made a case for a re-interpretation or new understanding of the relevant biblical verses. Of these the most important by far is the valiant responsum of Rabbi Bradley Shavit Artson, which was not accepted by the CJLS. His exegetical approach is perfectly valid, and his treatment is masterfully exhaustive. My hesitation concerning his responsum is not regarding what I find in it, but regarding what I do not find in it. My own preference, as I indicated in the preface, is to base this responsum on the way our sages and rabbis have understood these biblical verses and associated issues through the ages, without re-interpretation. It is this relation to the details of rabbinic legislation that I find lacking in Rabbi Artson's responsum. Nevertheless, it is most important to note that not only do papers such as that of Rabbi Artson display a perfectly valid methodology, but they have also given us many valuable insights: I would particularly highlight the substantive difference between "social homosexuality" in earlier periods with modern "emotional homosexuality" which is the main thrust of Rabbi Artson's contribution. I share his view that our sages did not comprehend homosexuality as we must understand it today in the light of new psychological insights. Since his path and mine are different roads to the same goal, they are not mutually exclusive but mutually complementary. My paper supplies what I find lacking in his and I hope that he would agree that his responsum supplies what is lacking in mine. Neither of us, I would assume, will necessarily agree with everything that the other has written; both of us will agree on the general direction.]
Mishkav zakhur is a major sexual prohibition. It belongs to the category known collectively as arayot, forbidden copulations. Like other forbidden acts in this category it is a capital offence. In former times, when there were courts adjudicating capital cases according to Torah law, both males participating in this act of anal penetration would have been sentenced to death by stoning if there had been two halakhically competent witnesses to the act who had warned the couple that what they were doing was a capital offence. In the absence of such courts today the participants are deemed punishable by excision if they do not achieve sincere repentance before their deaths. [Rambam defines excision as the complete extinction of the soul at the time of the physical death of the body (Commentary on Mishnah Sanhedrin 10:1).] It follows that a gay male who wishes to be religiously observant should make every effort of mind and soul to avoid anal penetration. Everything else is subservient to this major demand. However difficult it is, emotionally and sexually, the supreme effort must be made to avoid anal penetration (and, as Rambam stated, this applies to both partners in the act). This is because all the copulations that are termed arayot belong to those sins that a person may not commit even if he will lose his life by refusing to do so. (The three categories are idolatry, illicit copulation and taking a human life [Rambam, Hilkhot Yesodei ha-Torah, 5:1-2]).
[Mishkav zakhur is but one of the arayot that people generally find difficult to observe. Another, on the heterosexual side, is the prohibition of copulation between a man and a woman (even one's wife) who does not bathe regularly in a mikveh after menstruating. This too is punishable by excision if one dies unrepentant. There is no relative value difference between the two sins from the halakhic point of view. Let us imagine for a moment a situation that could arise in almost any town or city where Jews live today. In an apartment block there are two apartments on the same floor. In apartment A live a man and his wife - a couple who were married through Ĥuppah-Kiddushin and who lead a decent Jewish life of observance and synagogue attendance. However, the woman in this apartment does not bathe in a mikveh every month. In apartment B lives a man and his male partner - a couple who also try to lead a decent Jewish life of observance and synagogue attendance. Although this couple is gay they scrupulously avoid anal sex, accepting that it is a sex act prohibited by Torah law, just as is copulation with a niddah is a sex act prohibited by Torah law. Is it not ironic that the two men in apartment B are better Jews from the point of view of religious observance than the husband and wife in apartment A?]
Before we leave the subject of mishkav zakhur I would like to address a very human element into the discussion. What can be said of the person who generally tries to observe the prohibition of mishkav zakhur but occasionally fails in this? Again, in order not to interrupt the flow of this paper I have included my hesitant advice on this matter in an addendum. [Click here to read the addendum.]
As we have seen, the act that the Torah prohibits is anal penetration of one male by another. For obvious anatomical reasons this cannot apply to females. This is the reason why there is no equivalent female homosexual act which would earn the participants either judicial death or excision. Nevertheless, homosexual acts between women were also forbidden by the sages. Their prohibition is based on a rabbinic interpretation of a verse in the Torah [Leviticus 18:3]:
כמעשה ארץ-מצרים אשר ישבתם-בה לא תעשו וכמעשה ארץ-כנען אשר אני מביא אתכם שמה לא תעשו ובחקתיהם לא תלכו
You shall not copy the practices of the land of Egypt where you dwelt, or of the land of Canaan to which I am taking you; nor shall you follow their laws.
Rambam [Hilkhot Issurei Bi'ah 21:8] codifies as follows:
נשים המסוללות זו בזו אסור וממעשה מצרים הוא ... אע"פ שמעשה זה אסור אין מלקין עליו שאין לו לאו מיוחד והרי אין שם ביאה כלל לפיכך אין נאסרות לכהונה משום זנות ולא תיאסר אשה על בעלה בזה שאין כאן זנות ... ויש לאיש להקפיד על אשתו מדבר זה ומונע הנשים הידועות בכך מלהכנס לה ומלצאת היא אליהן
For women to be sexually intimate with each other is forbidden as this is one of the "practices of the land of Egypt". However, even though the act is prohibited it is not punishable ... because there is no specific Torah prohibition and sexual intercourse is not possible. This is why [such women] are not prohibited to ... their husbands because of prostitution ... for there is here no such prostitution... A husband should prevent his wife from such practices by forbidding women known [to do such things] access to her and by [forbidding] her to go out to them.
Since it is not one of the arayot nor are there any judicial or social consequences there is no need for us to investigate halakhic implications of female homosexuality at this point, since they can be subsumed in the discussion of male homosexual practices other than mishkav zakhur and masturbation. However, we should note that it is significant that the prohibition of the sages seems to assume that the women involved in these activities are married (to men).
(ii) Secondary considerations
We may now examine the halakhic status of other sexual acts open to a gay couple.
I Male Homosexuals
The Shulĥan Arukh [Even ha-Ezer 1:1] states:
חייב כל אדם לישא אשה כדי לפרות ולרבות
A man must marry a woman in order to procreate...
Does this requirement, sequentially the first of the 613 mitzvot of the Torah, apply to gay males? In an interview in the additions to the documentary "Trembling before God" (the additions are available on the DVD edition) Rabbi Aaron Feldman in Jerusalem, tells a story about the Brisker Rav [Rabbi Yitzĥak Ze'ev ha-Levi Soloveitchik (1886-1959).]: a gay man came to him. The Brisker Rav said he is exempt from the mitzvah of getting married and procreation since he doesn't have these drives.
This seems eminently appropriate. It would be cruel in the extreme to impose marriage on a man for whom any sexual encounter with a woman would be totally distasteful and probably a physical impossibility because of the constraints of his psychological and emotional complexion. It would be cruel not only to the man but also to the woman he marries. The Brisker was obviously referring to the fact that a gay man does not have a constitutional sexual attraction towards women: he is just not programmed that way. He is sexually attracted towards other men as naturally and a surely as straight men are attracted towards women. The Brisker must have intuitively perceived that this sexual orientation is not something of the gay man's choosing, but something imposed upon him by some mechanism beyond his control and beyond his understanding. (This is also true of the heterosexual orientation, of course, but this is not usually appreciated since the heterosexual drive is the norm assumed by humanity in general and by Torah in particular.)
When a person's actions are influenced by a power beyond his control this is called "constraint", אונס, by our sources. We shall return to the halakhic implications of 'constraint' later on in this paper; however, I think that this is a point that should be borne in mind also when dealing with the plain meaning of the Torah when it deals with male homosexuality. In the famous 'discussion' between Rabbi and Bar-Kappara in Nedarim 51a the biblical word תועבה [Leviticus 18:22] is interpreted by Bar-Kappara as indicating תועה אתה בה. In his commentary on this phrase RaN explains that the phrase criticizes husbands for forsaking their legitimate wives in order to seek out other men: שמניח משכבי אשה והולך אצל זכר. The Tosafists agree with this interpretation and make it even more specific: שמניחין נשותיהן והולכין אצל משכב זכור - They forsake their wives and seek out copulation (mishkav zakhur) with men. I think that according to this interpretation the whole conversation can be readily understood as Bar-Kappara hinting severely that he disapproves of Rabbi marrying off his daughter to Ben-Ellissa for the reasons implied. It is always useful to bear in mind who is the 'thou" when we encounter a 'thou shalt' or a 'thou shalt not'. According to these Rishonim the prohibition of the Torah against mishkav zakhur is directed against men married to women. I recently discovered another of the Rishonim who gives a similar interpretation to the verses in Leviticus. In his book "Beyond Reasonable Doubt" my teacher, Rabbi Louis Jacobs z"l, brings the strange "Lange Case", in which part of the then ultra-orthodox establishment tried (successfully) to have certain passages removed from a book compiled by Dr I Lange. The book is concerned with the teachings of Rabbi Yehudah he-Ĥasid. Subsequent editions of his book were bowdlerized, but the original edition is in the possession of Rabbi Jacobs, and he has been kind enough to provide me with the exact words of Rabbi Yehudah he-Ĥasid concerning the verses in Leviticus that are the subject of our present discussion. They are, perhaps not surprisingly, very similar in purport to those of other Rishonim already quoted:
מה שאסרה תורה לשכב את זכר ושלא לרבע את הבהמה הכל בעבור שישאו נשים ויקיימו פריה ורביה...
The Torah prohibits mishkav zakhur ... so that they will marry women and keep the precept to be fruitful and to multiply...
Be all this as it may, we may certainly note that there is no hint of moral turpitude in the comments of these Rishonim. This interpretation while possibly shedding light on the problem of the gay man could shed darkness on the problem of closet gays married to women. However, that is not the subject of this paper.
II Female Homosexuals
Women are not obligated to marry and procreate. Rambam [Hilkhot Ishut 15:2] states this clearly and succinctly:
האיש מצווה על פריה ורביה אבל לא האשה
Men are commanded to procreate, women are not.
Therefore, for a woman for whom conjugal life with a man is distasteful there is no compulsion to submit to marriage and procreation.
b) Other sexual activities.
Other sexual activities would include masturbation (including fellatio), hugging, kissing and so forth. Of these, only masturbation and fellatio are strictly male activities, so we shall address them first. After that we shall relate to the other activities which are common to both gays and lesbians.
I Male homosexuals
Masturbation (onanism is a misnomer for masturbation as it properly denotes coitus interruptus, and thus is of a peculiarly heterosexual application.) is termed in our classical sources hashĥatat zera, or hotza'at zera le-vatalah. This means that the effect of the action is to expel semen for a purpose other than procreation and into a receptacle other than a womb. This is prohibited by the Palestinian Amora Rabbi Yoĥanan in the Talmud [Niddah 13a] and he bases himself on the death of Onan as described in the Torah [Genesis 38:10]. The Shulĥan Arukh [Even ha-Ezer 23:1-2] (under the influence of the Zohar [Zohar, Part 3, 90a]) prohibits this activity in hyperbolic language:
אסור להוציא שכבת זרע לבטלה ועון זה חמור מכל עבירות שבתורה... אלו שמנאפים ביד ומוציאים שכבת זרע לא די להם שאיסור גדול הוא אלא שהעושה זה בנדוי...
It is forbidden to masturbate. This sin is more serious than all the other sins in the Torah... It is not enough that those who 'fornicate with their hand' ... are committing a grave sin; they must also be excommunicated...
If, in addition to mishkav zakhur, this activity also is denied the gay man he will be left with almost no physical means for the relief of sexual tension and for sexual expression, which will have possibly dire consequences, ranging between mental anguish, emotional instability and suicide.
[Although my own circle of acquaintance is limited, I personally know of two gay young men who attempted suicide, one at the age of 13 and the other when he was 14 and again when he was 23. Twelve independent scientific surveys, conducted between 1972 and 1992, and covering a total of 1537 cases, indicate a mean age for a first suicide (or suicide attempt) as 19.3 years, the percentage of the general sample that attempted or accomplished suicide was 31.3%, and the percentage of attempts that were repeated was 39.6% In addition, the following is reported by APS [August 26th 2001] concerning teenage homosexuality in the State of Israel: "The number of attempted and actual suicides among homosexual youths is believed to be three to six times as high as those among heterosexuals, according to a report published ... by the Political Council for Gay Rights in Israel... According to the report the gay community in general suffers disproportionately from sexual diseases, AIDS, stress, smoking, use of drugs and alcohol, and exposure to the sun."]
One ultra-orthodox gay man, K. J Sanders in a comment in an Internet discussion, has said:
And so the options for people who are homosexual basically come down to becoming completely secular, or accepting that we will be forced to violate certain Torah laws in order to function, or committing suicide. Certainly not an enviable choice to have to make.
Despite the uncompromising language of the Shulĥan Arukh as quoted above there are halakhic possibilities that will permit a gay man sexual expression through masturbation. The most direct possibility is to follow the line of thought of Rabbenu Tam [Yevamot 12b s.v. Shalosh] that anyone who is exempt from the mitzvah of procreation would not be bound by the prohibition against masturbation. Since we have accepted that gay men are exempt from the mitzvah of procreative marriage it would follow that they are not bound by the prohibition against masturbation. However, no other posek has taken this line of thought, and while Rabbenu Tam is certainly great enough to rely on as it were, it would be prudent also to search for another avenue of approach as "back up". In his commentary on that hyperbolic statement of the Shulĥan Arukh, Bet Shemu'el [Rabbi Shemu'el ben-Uri Shraga Faivush, 17th century] points out that the hyperbole in the statement is misleading. Sefer Ĥasidim [# 176] of Rabbi Yehudah he-Ĥasid had already pointed out that there were circumstances where not only was masturbation permitted but should be seen as preferable.
מעשה באחד ששאל, מי שיצרו מתגבר עליו וירא פן יחטא לישכב עם אשת איש, או עם אשתו נדה, או שאר עריות האסורות לו, אם יכול להוציא זרעו כדי שלא יחטא, והשיב לו באותה שעה יש לו להוציא, שאשת איש מוטב שיוציא שכבת זרע ואל יחטא באשה...
One person asked whether someone whose sexual drive was getting the better of him and he was afraid that he might sin by copulating with a married woman or his menstruous wife or any other of the arayot that are forbidden to him whether he could masturbate so that he might not sin. The response was that in such circumstances he should masturbate, for if it is a married woman it is preferable that he masturbate rather than sin with the woman...
In his commentary Ĥokhmat Shelomoh on that same paragraph in the Shulĥan Arukh, Rabbi Shelomoh Luria goes even further, and suggests that it might even be a mitzvah to perform a lesser sin in order to avoid a greater sin.
היכי שיש שתי עבירות לבחור זה או זה אז מוטב לבטל עון שכבת זרע ... ואם כן בבא לידו דבר עבירה כגון אשת איש או נדה ולא עשה הרי נחשב לו כעושה מצוה ... לכך מותר לו להוציא שכבת זרע עבור כך.
When there are two sins to choose between, either this one, or a more serious one, it is better that he disregard the prohibition of masturbation ... So, if it was possible for him to commit a sin, such as having intercourse with a married woman, or a woman during her menstruation, and he didn't do it, he is considered like someone who did a mitzvah... and therefore, it is permitted for him to spill his semen for this reason.
We have established that anal penetration is one of the arayot forbidden by the Torah and must be avoided by gay men. Therefore, according to the thinking of Rabbi Yehudah he-Ĥasid, masturbation as an alternative to mishkav zakhur is to be condoned; and according to Rabbi Shelomoh Luria if the masturbation succeeds in preventing the sin of mishkav zakhur then it might even be regarded as a mitzvah! It might also be possible that this is influenced by the enigmatic statement of Rabbi Yehudah ha-Nasi [Avot 2:1]:
והוי מחשב הפסד מצוה כנגד שכרה, ושכר עברה כנגד הפסדה.
... Calculate the loss of a mitzvah against its reward and the reward of a sin against its loss...
Also, see the commentary of Rambam on that mishnah.
In spite of the above statements it is highly unlikely that any of the authorities mentioned intended the heter [permission] to be anything more than occasional, in time of acute temptation.
[It is my view that the original intention of the prohibition against הוצאת זרע לבטלה (including that of the Zohar) was directed against coitus interruptus, and I think that it is clear that the poskim who question the hyperbole of the Shulĥan Arukh were aware of this, as their quoted statements make clear. If this view is correct the whole issue of masturbation has no relevance to our discussion.]
Is it possible to see this heter as ongoing in homosexual circumstances? I believe that we can indeed say so, because it is but natural that a religious gay man will seek out a partner and a relationship. Under those circumstances the temptation of mishkav zakhur is a constant one, and the heter of masturbation is a constant need. The gay man's emotional health depends on it, and we should bear in mind that if both masturbation and anal penetration are denied him the religious gay man will in all probability forsake religious observance entirely. The wise posek too will "calculate the loss of a mitzvah against its reward and the reward of a sin against its loss".
Other poskim seem to have derestricted the prohibition of masturbation even more. Maharshag [Rabbi Shim'on ben-Yehudah Gruenfeld (1881-1930)] in a responsum [#243] concludes that masturbation is prohibited only when it is entirely to no purpose. In the cases that are the subject of our present discussion masturbation has the very important purpose of replacing or displacing anal penetration. Another authority [Atzei Arazim #101 (quoted in Otzar ha-Poskim on Even ha-Ezer 23:1)] also restricts the hyperbolic condemnation of masturbation by the Zohar and the Shulĥan Arukh, and refers the condemnation to a completely different - heterosexual - sin:
דבזוהר מיירי בדש מבפנים וזורה בחוץ כמעשה ער ואונן דכתיב מיתה בקרא ועל זה קאמר שחמור מכל עבירות שבתורה. וכן הדין שהמצוה מזומנת לפניו ודש בעקבו לבלתי נתן זרע לקיים מצות בוראו. אבל בספר חסידים מיירי שאין אשתו מזומנת לפניו ומנאף ביד. אף על גב שעון גדול הוא ... מכל מקום אינו חמור כל כך כשאר חייבי כריתות ומיתות בית דין כי אינו מבטל מצות פרו ורבו...
The Zohar must be referring to coitus interruptus, ... and it is in reference to this that it says that it is the worst of all the sins of the Torah ... for the mitzvah [of copulation with his wife] is right there waiting [for fulfillment] and he degrades it by not depositing his semen in fulfillment of the command of his Creator. But the Sefer Ĥasidim is concerned [with a situation where] his wife is not available and therefore he masturbates; even though this may be sinful ... it is not as serious as those sins that require excision and capital punishment, because he is not negating the mitzvah of procreation...
Thus, only to a married man in the presence of his wife would masturbation be completely prohibited, and that prohibition would then have no relevance at all to our present thesis. It therefore seems that there is ample support for masturbation בדיעבד as a "replacement activity" for mishkav zakhur. Additional halakhic issues that are involved in mutual masturbation will be considered later on.
II Male and Female homosexuals
(2) Physical expressions of affection (hugging, kissing and fondling).
The Torah [Leviticus 18:6] stipulates:
איש איש אל כל שאר בשרו לא תקרבו לגלות ערוה...
None of you shall come near anyone of his own flesh to uncover nakedness.
Rambam, basing himself on a very appropriate midrash in the Sifra [Aĥarei 13], states [Sefer ha-Mitzvot, Lo Ta'aseh 353] that this is a Torah command that requires everyone to maintain a complete physical distance from any possibility of contact with arayot. Thus Torah law would strictly forbid hugging, kissing and fondling someone such as a sister or aunt. (Indeed, a special exception had to be made to permit a man to have any kind of physical contact with his own mother!) This requirement does not seem to have been strictly enforced even in talmudic times. In the Gemara [Shabbat 13a] we read that one Amora, Ulla, when returning from the Bet Midrash would kiss his sisters on their breasts! This is emended by the Gemara to "on their hands", but according to the law as stated by Rambam this would make no difference, since either limb is forbidden him!
In his animadversions on Sefer ha-Mitzvot, after analyzing several sources, Ramban [Moses Naĥmanides] claims that Rambam is wrong, and that the prohibition he describes is only rabbinic, mi-de-rabbanan, and not mi-de-'orayta.
Before we attempt to resolve this difference of opinion between Rambam and Ramban, we must reconsider, and in much greater detail, the halakhic parameters of the condition of 'constraint'. We have already noted that sexual orientation, being a function beyond the individual's conscious control is a kind of constraint. When one is prevented from observing a certain commandment because of some contrary force - human, psychological or medical - we consider this to be 'constraint'.
Rabbi Yosef Engel [1859-1920] writes most eloquently in this regard [Atvan de'Orayta, #13]:
ובזה הסברא נותנת דאין הקב"ה בא בטרוניא עם בריותיו ומחייב אך את מי שיכול לקיים המצוה ואנוס אינו מחויב כלל שאין הקב"ה מבקש מהאדם רק מה שביכולתו... דכל עיקר החיוב הוא אך מצד רצונו ית' בלבד שרצה שנעשה הדבר ההוא ואנחנו מחויבים לעשות רצונו ית' ומצוותיו. על כן על אנוס אין חיוב כלל ואין בו עניין המצוה כלל שהקב"ה רוצה רק ממי שיכול לקיים ולא ממי שאין ביכולתו לקיים ודו"ק היטב בסברא זאת: הנה במצות פריה ורביה ... ממילא האונס פוטר ממנה לגמרי.
It is quite logical to assume that God has no complaint with His creatures [when they cannot fulfill a mitzvah because they are not able to]. God places a duty only on those who are able to fulfill the mitzvah. Someone who is under constraint is not required to fulfill a mitzvah at all, because God only demands of a person what he is capable of doing... A command is only a command because it is God's will that we do that thing and we are required to fulfill God's will and His commandments. That is why the person who is under a constraint is not commanded, the command does not apply to him at all, because God only wants those who are able to fulfill [a commandment to do so] and not someone who is unable to fulfill it... Procreation is a positive command and therefore the person under a constraint is completely excused.
What does someone being "under constraint" mean here? The Hebrew term is אנוס . This refers to someone who is unable to fulfill a mitzvah because of some constraint over which they have no control. That constraint could be as severe as a gun pointed at one's head or as common as not being able to fulfill a certain mitzvah because of the constraint of temporary illness. Homosexual orientation is also a kind of constraint. Of course, it is a constraint in exactly the same way as heterosexual orientation is a constraint. The difference is that the constraint of heterosexuality is the assumption of Torah. It is often claimed that even if the homosexual emotional complexion is a kind of constraint, that could not justify halakhic legitimization any more than we could legitimize other deviationary behaviour. For example, in a responsum also adopted by the CJLS on March 25th 1992, Rabbi Reuven Kimelman argues that
one could easily imagine somebody contending that he is sexually functional only with other married women or with his daughters... If an analogy is in order, kleptomania may ... be an instructive one. Feeling that what is their own cannot have much worth, kleptomaniacs take things precisely because they belong to others. Notwithstanding our compassion for the low esteem that generates the characterological problem of kleptomania, we still cannot condone the stealing.
This kind of reasoning falls down on two central point: pedophilia and kleptomania (and so forth) are recognised psychological disorders; they are pathological; they are illnesses of the psyche; therefore they cannot be justified halakhah whose norms and standards reflect the healthy human psyche.
[An esteemed colleague has raised a very valid query in this regard. "Your arguments about medical/psychological acceptance of same-sex orientation as organic and ... other kinds of orientation as pathological are defensible only in contemporary context... So if I accept the notion that our understanding of human sexuality has evolved, what is to prevent later research from determining that genetics or environment may produce a permanent 'imprint' of a more specific nature... Are we, by your logic, on a road to the 'consenting (halakhically-defined) adults' standard if the consensus of medical science explains sexual appetite as less voluntary than we imagine?" My response to this query is simple. In talmudic terms I would say הכי נמי: whatever the future consensus of respected, authoritative and persistent scientific opinion on any matter might be must be taken into account by an evolving halakhic system such as is that of our movement.]
Even though it is certainly not the condition of the majority of the human race, homosexuality is not a pathological condition of the psyche, and this has been stated and reiterated many times by the competent medical authorities and appropriate professional bodies. Furthermore, the difference between a victimless action and a crime with a victim is also a central point here: pedophilia and kleptomania are forbidden activities because the perpetrator - even if acting under the constraint of his psyche - is causing damage, harm, injury, loss to another party, a victim of his psychological constraint. (I am indebted to my esteemed colleague Rabbi Avraham Reisner for this insight.) The comparison with adultery, pedophilia or kleptomania is a red herring. A better comparison would be with people who are left-handed: in earlier times the left was considered to be 'sinister' (the Latin word for 'left') and in our own mystical tradition it was known to be 'the other (sinister) side'. But halakhah does not discriminate against left-handed people because they have a natural and non-pathological condition that deviates from the norm; but it does legislate for their particular needs when necessary (for instance on which arm to bind tefillin).
We do not know why some people are homosexually orientated. To the halakhah it is immaterial what the etiology of the condition is (and experts have so far reached no consensus on this matter). It is clear that it is a psychological and emotional mindset that directs a person's sexual drive and over whose existence and influence the individual has no conscious control: these feelings and tendencies are just there. In homosexuals the drive is as innate and as demanding as is the heterosexual drive in heterosexuals. In this sense we must accept that the gay person is the way he or she is because that is God's will for them. If they have no control over their emotional complexion in this matter they are to be regarded as acting under constraint from the halakhic point of view. People who are in such a situation with regards to a certain mitzvah - they cannot force themselves to perform it or cannot prevent themselves from disobeying it - are exempt from that mitzvah as long as the impediment that is beyond their control exists.
If a person sins because they are under a constraint, even if the sin involves arayot (such as mishkav zakhur) and they were not brave enough to die rather than commit the sin, even though they have profaned God's name they are not liable for their action to any human court [Rambam, Hilkhot Yesodei ha-Torah 5:4]. If this is the case as regards arayot it obviously follows that it is all the more true in the case of lesser sins. Furthermore, if a person sins under constraint, as regards their other rights and privileges they are no different from any other Jew [Rivash #4 and #11].
אם יכול למלט נפשו ... ואינו עושה הנה הוא ככלב שב על קיאו:
Anyone who can escape [from the constraint under which he suffers] and does not do so is like a dog staying in its own vomit.
We can easily see that this might indicate that the homosexual tendency does not qualify as constraint. For if the gay person can extricate himself or herself from the constraint through therapy then he or she can no longer be considered as being under constraint: they can remove the constraint. However, the facts cannot be denied. The medical profession does not consider homosexuality to be a mental disorder and holds that therapy doesn't work and therefore cannot be considered as a means by which the gay person can release himself or herself from the constraint of their sexual orientation.
[Resolution: 9 (I-99) American Medical Association, October 1999... Subject: Development of a Policy Statement on Sexual Orientation Reparative (Conversion) Therapy...
Whereas, Numerous organizations have recently used mass media such as newspapers and television to make dubious claims about changing the sexual orientation of homosexual individuals through prayer and other means; and
Whereas, The studies by Evelyn Hooker and Marvin Siegelman did not reveal any differences in psychopathological tendencies or neuroticism between homosexual and heterosexual subjects; and
Whereas, The aforementioned studies above and others findings were the basis for the American Psychiatric Association to remove homosexuality from its list of mental disorders in the Diagnostic and Statistical Manual in 1973, with the American Psychological Association to follow with a similar action two years later; and
Whereas, A review by Douglas Haldeman revealed that homosexual subjects who have undergone reparative (conversion) therapy failed treatment, since such subjects who had supposedly converted to heterosexuality still demonstrated sexual attraction to the same gender; and
Whereas, The film documentary One Nation Under God exposed the programs of reparative (conversion) therapy organizations to be fraudulent and inductive of psychological scarring in patients who have tried it; and ...
Whereas, The Gay and Lesbian Medical Association, the American Psychiatric Association, the American Psychoanalytic Association, the American Academy of Pediatrics, and the National Association of Social Workers, all have policy and position statements condemning reparative (conversion) therapy either as harmful, ineffective, or unethical, or discusses the issue of societal homophobia as the real cause of a patient's discomfort with his or her sexual orientation rather than trying to change sexual orientation itself; therefore be it
RESOLVED, That the AMA does not support sexual orientation reparative (conversion) therapy, but rather supports efforts to address homophobia.]
Rabbi Elliot N. Dorff already foresaw this last point in his responsum in 1992:
...The simple fact is that all of the organizations of our time which embody relevant expertise on these issues have officially said that homosexuality is not a sickness and that, in any case, it is not reversible. Of course there are individual psychologists or psychiatrists who hold some other view, but to cite them, as Rabbis [Joel] Roth and Norman Lamm do, is to choose what are by now isolated opinions in the world of psychology to buttress their weak scientific case. It is just like quoting some of our Conservative rabbinic colleagues who think that we should accept patrilineal descent and then pretending that that is the policy of the Conservative Movement. Like it or not, the clear evidence of the psychological community - clearer now than when they took their respective actions in the mid-1970s - is that homosexuality is not an illness and that it is not reversible.
However, even if we were to decide that there is no way at all to condone any of the other activities (which, of course, is far from the case as we have already demonstrated) nevertheless there would still be an understanding that apart from the major sin of mishkav zakhur none of the other sins associated with a homosexual relationship require one to give up one's life rather than commit them.
In the Gemara [Yevamot 53b], the amora Rava states that the human male must always be held to be in control of his sexual behaviour - even when under external constraint - since he can only have an erect penis if he wishes it. First of all we must note that Rava is speaking of an external constraint (such as when one is forced to do something at gunpoint); our particular context is different and the constraint is internal. However, according to the line of thought of Rava one could never apply the consideration of constraint to mishkav zakhur. Several rishonim question the possibility of applying this opinion of Rava in all situations [Tosafot ad loc, Rashba ad loc, Rivash 4, 11, 387, Maggid Mishneh on Hilkhot Issurei Bi'ah 1:9], but all from the point of view of an external constraint. Today, any male - straight or gay - will vouch for the fact that he can have an erection even at moments that cause him the most acute embarrassment! (Ask any teenager.) Indeed, one of the rishonim [Rivash #387] wrote that in some cases we can apply the principle expounded from the Torah [Leviticus 18:5] וחי בהם, "And live by them [the commandments] - and not die by them." [Kohelet Rabba 1:24] It is particularly important to bear this in mind in connection with gays because the suicide rate among gays is far higher than in society in general.
[A survey of Australian senior high school students, announced in December 1999, has found that more than 6% of them have homosexual feelings, the Sydney Morning Herald reports. The study was conducted by researchers at La Trobe University and was published in the Australian and New Zealand Journal of Public Health. The researchers, who canvassed more than 3,500 students in grades 10 through 12 in 118 schools throughout the country, found that students who admit to same-sex feelings are up to four times more likely to engage in destructive behavior, including binge drinking and intravenous drug use. Of the students surveyed, 6.3% said they are attracted to members of their own sex... ]
However, even if we have to accept the statement of Rava, this would only apply to mishkav zakhur, and even according to him we could condone the commission of an "ordinary" sin in order to save a person's life (and also their sanity, mental health and emotional stability).
Nor is there any cause to deny the potency of the constraint, simply because of the pleasure that the act it compels may generate. Rambam [Hilkhot Sanhedrin 20:3] writes that if a woman is raped she is held to be innocent even if at some point during the rape she begs that the rapist be allowed to continue because of the pleasure she is feeling. "Her own nature is constraining her." [This is a most perceptive remark and it seems to be entirely that of Rambam, since his source for this halakhah, Sanhedrin 73b, gives a different reason for the woman's request. In the context of our general discussion Rambam seems to be making here a most important contribution.] However, accepted halakhah does not apply this to males because of the presumed anatomical phenomenon that no man can produce an erection if he is not sexually aroused [Yevamot 53b] This is why one could not reason that mishkav zakhur is permitted because of constraint: the erection is considered to be an indication of willingness. However, there is no reason why the consideration of constraint should not apply to all cases that are not arayot.
Now we can return to the difference of opinion between Rambam and Ramban [Naĥmanides] in connection with keruv basar, physical contact.
Even if Rambam is correct that this is prohibited by force of Torah law this would still mean that the gay person, acting under the constraint of his nature, would not be held culpable for not observing this commandment. If Ramban [Naĥmanides] is correct that it is only mi-de-rabbanan then it is even easier to make this claim. We have already seen that under the circumstances to which we are relating even masturbation would be permitted as an alternative to mishkav zakhur. From there it would be a short step to apply the logic of a kind of reversed kal va-ĥomer: if masturbation is permitted to prevent mishkav zakhur should not keruv basar [physical contact] be permitted for the same reason? Under such circumstances, keruv basar would not be a dangerous preface to a completely forbidden activity, but a replacement activity that is intended to displace the greater sin of mishkav zakhur.
Everything that I have written above in connection with keruv basar is in order to relate to halakhah as it has been handed down to us. However, a Conservative rabbi may also take into account the mores of his constituency. I do not think that it would be an exaggeration to say that even the most conservative of Conservative male rabbis today would not balk at shaking a woman's hand, nor would he refrain, at moments of great emotion - joy or sorrow - from publicly hugging and even kissing a woman to whom he is in no way related. I strongly suspect that in all segments of Conservative Jewish society masturbation is not looked upon as an unforgivable sin, under any circumstances. Therefore, if a Conservative halakhist were to raise objections concerning masturbation and keruv basar in the case of homosexuals alone it would be nothing but halakhic hypocrisy.
One argument that is often leveled against this line of halakhic thought is based on case reciprocity. For example, would we permit or condone sexual foreplay between a man and a married woman who is not his wife on the understanding that this foreplay is intended to displace vaginal penetration? Obviously not! So why, we are asked, should such behaviour become condoned in the case of same-sex unions?
I think that however cogent this line of reasoning appears at first blush such an argument must fail after greater thought. The adulterous union is completely forbidden but the parties have other means to express their sexuality. If the woman is divorced from her husband before sexual activity with her lover there is no halakhic bar to sex between them. All they have to do is wait and be patient. Even more to the point is the consideration that adultery is not internally compelled like homosexual behavior; therefore it is not a candidate for a heter. Apart from the gay person there is no one in the whole breadth of compassionate Jewish life to whom halakhah, as heretofore interpreted, says, "you may never, ever, under any circumstances, find legitimate sexual expression and enjoy physical love". In our own movement we have adopted solutions to solve the plight of the agunah (who otherwise would come nearest to the gay person as someone denied all sex except with her missing or recalcitrant husband). From the point of view of sexual fulfillment (which is, after all, a basic component of the human biological and emotional setup) the gay person must be viewed halakhically sub sui specii, as a unique halakhic entity.
["The only other places where the Torah comes remotely close to the situation of the homosexual are a few pathological instances (don't tell me about mamzerim - a mamzer can always find a mamzeret, or a convert, or a Gentile bondwoman). A widow of a High Priest, for example, may not have sexual intercourse ever again, for the rest of her life. And a widow of a king almost always finds herself in the same situation, because a king's widow may only marry another king, to whom she is usually forbidden for reasons of incest. Those are the only situations I can think of where the Torah forbids someone to have sexual intercourse for the rest of his life..." [A comment posted on an Internet discussion group].]
The alternative to condoning some homosexual acts is to condemn the observant gay person to a life without any possibility of expression of physical love. Experience teaches us that the results of such repression could be anything from emotional instability, neuroses and drug addiction right through to desperate self destruction. This cannot have been the intention of Torah, which is חסד בעולם "kindness in the world". Rabbi Elliot N. Dorff, in his 1992 responsum, emphasizes this point most effectively:
I, for one, cannot believe that the God who created us all created ten percent of us to have sexual drives which cannot be legally expressed under any circumstances. That is simply mind-boggling - and, frankly, un-Jewish. Jewish sources see human beings as having conflicting urges that can be controlled and directed by obedience to the wise laws of the Torah; it is Christian to see human beings as endowed with urges that should ideally be forever suppressed. It makes of God a cruel director in this drama we call life, and our tradition knew better. It called God not only merciful, but also good. God's law, then, must surely be interpreted to take those root beliefs of our tradition into account.
If we had found no possibility whatsoever of condoning these acts in homosexuals we would have been forced to admit that they have no remedy. But we have demonstrated that it is possible within the halakhic framework to indicate ways in which such acts can be understood and condoned. To ignore these possibilities is tantamount to cruelty. The author of the Sefer ha-Ĥinukh [mitzvah #44] says:
שאין זה כי אם רוע לב, ולבני ישראל שהם ... רחמנים בני רחמנים, ראוי להם לעשות חסד עם הבריות
This is nothing but heartlessness. For Jews, who are ... merciful people, descendents of merciful people: it is fitting to act kindly towards people...
And the Gemara [Yevamot 79a] tells us that our people are distinguished by three traits: we are merciful, shy and charitable. And that should be towards gay people no less than towards any others. And this, surely, must be my response to those who would deny the legitimacy of that which this paper attempts to do. When something has been considered to be prohibited for centuries, millennia, it is very easy to make out a case for taking no action whatsoever, just to leave the Torah prohibition intact with no liberal interpretation attempted. But the much more difficult path of attempting to find a permissive road on the halakhic highway is, in my view, mandated by the consideration of Ĥesed - sheer human kindness and כבוד הבריות, sheer human dignity. It is surely more laudable to adopt the path of כח דהתירא עדיף - the permissive ruling is to be preferred. [Berakhot 60a, Betzah2b]
(4) Mutual Masturbation, fellatio etc.
We now approach the issues that are involved when two gay people do to each other what we have already seen above would be condoned when practiced by an individual as a "replacement activity". The basic problem here is whether inviting someone to participate in such acts constitutes "aiding and abetting" [this is called in our sources מסייע ידי עוברי עבירה], or "putting a stumbling block before the blind" [Leviticus 19:14]. Is it possible for a religiously motivated person to invite someone else to participate in an activity that is still technically sinful (even if condoned)?
The classical place where this is discussed is in the Gemara [Avodah Zarah 6a-b], where the question is posed whether it is permitted to pass wine to a nazir [Numbers 6:1-21] - a person who had taken upon himself for a specific period of time the stringencies of not partaking of alcohol or cutting his hair. If the nazir drinks the wine he has committed a sin (by breaking his religious oath of abstinence). By passing the wine to him or selling it to him (even at his request) am I "aiding and abetting" him in a sinful act? The answer of the Gemara there is clear: you would not be aiding or encouraging him in his wrongdoing if he were going to do it any way. You would only be doing wrong if the only way he would commit this sin is through your complicity. If the nazir does not buy wine from one person he will buy it from another! The implications to our present discussion are clear.
Modern respondents discuss the issue. For example, Rabbi Moshe Feinstein [Iggrot Moshe, Yoreh De'ah 1:72] was asked whether it was permitted for an ultra-religious catering company to cater a wedding in a banqueting hall when they knew that the guests would later engage in mixed dancing. His responsum contains the following clarification, which can serve as a parameter:
סתם ישראל אין מצווין להפרישו אלא בעובר בשוגג אבל כשעובר במזיד על איזו עבירה אפילו אינו מומר אין ישראל אחר מצוה להפרישו
A Jew (any Jew) is only required to prevent someone else committing a sin in ignorance. When the other person would do it anyway he is not required to take action to prevent them from doing so.
Other modern poskim [Seridei Esh 3:61 & 62, Yeĥavveh Da'at 3:67, Minĥat Shelomoh 189:1] reach similar conclusions and we can summarize as follows:
It is not wrong to comply with the wishes of someone wishing to commit a sin if they would violate the prohibition anyway, without your involvement; and they are aware that what they are doing is the violation of a prohibition.
All this, of course, is under the assumption that what the gay person is doing is wrong. We have already demonstrated that there is ample room for accommodation to their special needs through halakhically condoning them. However, it is quite clear that any gay person who suborns someone who is not of that orientation to join them in acts which are condoned only when done by homosexuals is in grievous breach of several mitzvot of the Torah: he or she is putting a stumbling block before the blind, is inciting to commit a sin and is also probably "aiding and abetting" the commission of a sin. Obviously, therefore, the propositioning of a child or adolescent - or even from accepting a proposition from them - by anyone is halakhically forbidden.
SUMMARY of Part 1
The rabbinic prohibition of female homosexuality seems to have been directed towards married women. However, be that as it may, since there are no halakhic consequences involved in the disapproval of the sages there seems to be good reason for not applying that prohibition to women whom we now understand to be living under the constraint of the homosexual mindset. For the gay male mishkav zakhur, anal penetration, is forbidden at all times and under all circumstances; even the consideration of constraint has no weight here. Masturbation can be halakhically condoned as an activity that will displace mishkav zakhur. The gay male is excused the duty of marriage and procreation, a duty that was never placed on females at all. Kissing, hugging, cuddling and fondling are condoned in view of the fact that homosexuals (of both sexes) are living under a natural constraint (and in Conservative circles this particular aspect of the issue can probably be considered most liberally). Mutual masturbation and fellatio are not prohibited by the consideration of putting a stumbling block before the blind, or incitement to commit a sin.
In all these matters, perhaps, as in others, we might adopt the opinion of Abbayé [Sanhedrin 67b] that
יש מהן בסקילה ויש מהן פטור אבל אסור ויש מהן מותר לכתחילה
"some actions are capital offences, some are condoned and some are perfectly legitimate."
What practical conclusions can we draw from the halakhic conclusions offered in Part 1? It would be very easy indeed to create a halakhic case for blanket prohibition of all homosexual activity. It would also be very cruel. Once Conservative rabbis are convinced that homosexuals are not responsible for their orientation, cannot control it, cannot ignore it and that it is not a pathological condition we should realise that we have a duty to "pull up the halakhic floorboards" to find a heter. We have done this in regard to the union of a man of presumed priestly descent to a divorced woman or a proselyte; we have also done this in regard of the married woman the whereabouts of whose husband are unknown or who refuses to grant her a divorce.; we have done this too in regard to îîæø åîîæøú the offspring of unions not halakhically permitted; we have done this in regard to the halakhic status and role of women in general (family seating, including women in the minyan, reading from the Torah, serving as rabbis etc.). We can do no less for the sincerely religious gay person than we have done for the others. Not to do so would be an act of halakhic cowardice.
The issues that are involved here are simple from the point of view of halakhic logic, however difficult they may be for practical implementation. In his responsum of a decade ago Rabbi Elliot N. Dorff made a plea for a moratorium on practical decisions for several reasons, the most urgent being that not all our constituency were ready for the changes required. More than a decade has passed since then, a new secular century - indeed, a new secular millenium - has dawned, and we can no longer accept the plea that "the time is not yet ripe". The problem has not gone away and will not go away just because we behave like ostriches and pretend that it is not there. The problem is still with us, it is becoming more and more urgent, and we are failing in our halakhic duty if we do not address the problem creatively.
[Because our movement accepted the idea of a moratorium in this matter we, as rabbis, have been negligent in the task of education. An esteemed colleague has pointed out to me
"the shortcoming of all of our discussions (because we ourselves are uncomfortable owning up to it) is the matter of visceral response by amkha. The word 'homophobia' is as offensive to liberal-minded straights as epithets describing homosexuality are to gays. The phenomenon, however, is real. We cannot ignore that socialization ... has produced a discomfort among straights at the notion of romantic and/or intimate contact between two people of the same sex. I think it is important for straight people to 'get over it' ... but the solution is neither to pretend it doesn't exist, nor to merely say, 'get over it.' ... These folks make up a significant segment (even a majority) of our core constituency. To paraphrase Kaplan, they shouldn't have a veto, but they should have a voice... Any comprehensive approach to righting the wrongs of discrimination against gays and lesbians must address the very real prejudices/ orientations/ attitudes of a huge segment of the straight population. Especially, given the predominance of sexual expression in our society - including public displays of affection at synagogue, se'udot mitzvah and social occasions - there is a social element that must be taken seriously. The tzedek and ĥesed involved must apply to our entire constituency, not just the disenfranchised."
I cannot agree more with these words and they must be taken into consideration most carefully. Not only must congregants who have a 'problem' with gays celebrating in synagogues try to accommodate, but also the celebrating gays must be considerate: in a synagogue a hug is a perfectly acceptable means of expressing affection. Sat. verb. sap. - or as our own tradition says: די לחכימא ברמיזא.]
In Part 1 we have, I hope, demonstrated that provided mishkav zakhur is avoided there are ample grounds for maintaining that gay people are living under a natural constraint that calls for their relationships and sexual activities to be condoned by halakhah and its licenced practitioners. Thus the contention that we cannot act to approve something that is inherently forbidden by Torah is halakhically unacceptable! We cannot approve mishkav zakhur, which is expressly forbidden by the Torah. If we now have a new understanding of the nature of the psychology of homosexuality (that its etiology is not a voluntary conscious impetus, but a mindset over which the person has no control, and that this mindset is natural and not pathological) it is not impossible to adopt the heterim that I indicated in part 1.
[It is perhaps worthy of note that I use the word "condone" rather than "permit". Halakhah knows of a status between what is permitted and what is forbidden: an act which while usually being forbidden in certain circumstances involves no penalty (see Rambam, Hilkhot Shabbat 1:3). By using the word "condone" I am suggesting that while the acts discussed in this paper remain forbidden to most people, when performed by homosexuals they are not seen as prohibited but as condoned because of their special circumstances.]
Others have maintained that we cannot act to approve something that is "not natural sex". When heterosexuals involve themselves with masturbation, mutual masturbation, fellatio, anti-pregnancy pills, condoms, spermicides, curettage and the most amazing acrobatic feats in order to defeat conception, the heterosexual claim to "natural sex" is sheer hypocrisy! Are we therefore to desist from performing heterosexual marriages? From this point on we must be guided by propriety, decency, understanding and compassion - and not by specious arguments.
On March 25, 1992, the Committee on Jewish Law and Standards of the Rabbinical Assembly adopted a statement of policy concerning gays which included the following item:
We will not perform commitment ceremonies for gays or lesbians.
I shall address this issue in the following paragraphs.
In the world at large gay people are thought to be promiscuous.
[In a private poll conducted over the Internet in which more than 150 gay males voluntarily participated, almost 25% of those sexually active reported that that were in a monogamous relationship and less than 20% described themselves as completely promiscuous. However, more than 60% of those who were not sexually active (approximately 40% of the participants in the poll) responded that they were planning to be in an exclusively monogamous relationship. Although this poll was hardly scientific, as regards other questions that were asked for which there are independent reliable statistics the responses proved to be quite reliable.]
It is not our task here to verify that assumption or to deny it, but to address the question of promiscuity from the religious point of view. It seems to me that the answer that Jewish religious values require us to give to this question is clear: we can not and do not approve of sexual promiscuity - not among heterosexuals and not among homosexuals.
Halakhic Judaism works in frameworks, so we must create frameworks for our gay constituency that will work to reduce promiscuity. Not only is this dictated by our hashkafah [general religious philosophy], but also by halakhically pressing considerations of piku'aĥ nefesh [saving a human life that is in immediate and present danger]. The AIDS epidemic teaches us that we should do all that we can do within traditional frameworks to limit promiscuity among all men and all women, regardless of their sexual orientation. (Even those who are unconvinced concerning halakhic propriety will surely appreciate that in a heterosexual context a woman committing adultery five times with the same man is preferable to the same woman committing adultery once each with five different men! On the same rationale, it is better for a gay person to have sex many times with the same partner rather than only once with many partners.)
(2) Commitment Ceremonies.
In another responsum that was accepted by the CJLS, Rabbi Reuven Kimelman proposes that approving same-sex marriages could undermine the institution of the family which is at the very heart of normative Jewish society.
Ascertaining whether valorizing homosexuality is at all detrimental to family-producing sexuality is at the heart of public policy analysis. If it is, then the approval of a priori non-procreative marriages as a class could tend to devalue the type of sexuality that leads to procreation. The religious community has a vested interest in getting people to deal with their sexuality in a manner that is supportive of family and children. Indeed, the strength of the community is dependent upon persuading its members to define their self-interest in terms of responsibility for others, starting with spouse and children... In sum, religious legitimation of extra-normative sexual relationships threatens to undermine the privileged position of normative marriage.
With benefit of more than a decade of hindsight we can confidently state that Rabbi Kimelman's fears have not been borne out, thank God. It is true that in modern times the family as an institution is under siege. The rates of intermarriage and divorce are so high in the USA that one wonders how the traditional Jewish family can survive there for another hundred years. But this fragility of the Jewish family has nothing to do with permitting or prohibiting same-sex unions. On the contrary, more and more gay couples are demanding the right to adopt children or to produce their own offspring by artificial insemination. It is, therefore, paradoxical that while the heterosexual family is falling apart before our very eyes, many homosexual unions are demanding the right to create families modelled on the traditional family! There are now many instances of the legitimization of homosexual families in various countries around the world.
[It is perhaps relevant to note here the decision of a court in Beer-Sheva, Israel, in February 2003 to permit a lesbian couple to adopt the child of one of the partners (conceived through artificial insemination.) Also, on July 30th 2003 the Tel-Aviv Municipality voted into effect regulations that accord same-sex couples the same benefits as heterosexually married couples. The newspaper Ha'aretz reported the following day: "The decision, which was called by sources at city hall Wednesday 'the beginning of a civic revolution,' awards the same discounts at municipal cultural, sports, and other facilities to same sex marriages as are currently available to ordinary marriages. In order to be eligible for the discounts, a couple must present an affidavit from a lawyer in which they declare that they share a common domicile. They may also declare that they are raising a child together."]
There is no evidence that children brought up in such a family become homosexual themselves. Certainly, as we have already noted, Rabbi Kimelman's fear that the legitimization of the homosexual family would deal a death blow to the embattled heterosexual family has been shown to be unjustified. On the other hand, the very fragility of the institution of the heterosexual family in our times requires us to make it very clear that the homosexual family is not the Jewish ideal and that it is a format that could be countenanced only for those gay people who are constitutionally incapable of creating and maintaining a family heterosexually.
[In response to a query from a colleague I wrote: I am not certain to what extent one could make an halakhic case out for the permissibility of homosexual activity for the man who is able to achieve satisfaction from heterosexual sex. As I see it, Judaism does require such a man to perform the mitzvah of pru u-rvu. However, one should consider what should be the halakhic status of a person (male or female) who is locked in a heterosexual marriage but who now finds that their sexual orientation is uniquely homosexual. If my interpretation above of the 'quiz' that Bar-Kappara puts to Rabbi is acceptable then the Conservative rabbinate should adopt the following guidelines:
- Rabbis who know that one of the members of a prospective couple is gay or bi should require them to declare this to the other and to explain the dangers to the future of the relationship.
- If one of the spouses discovers his or her exclusive homosexual orientation during the existence of the marriage, Conservative rabbis should recognize this as sufficient reason for a divorce and even hafka'at kiddushin.]
It follows from what we have already said that it is to the benefit of all concerned that we create a framework that will give ritual effect to the creation of same-sex couples and that this framework would not delegitimize the traditional heterosexual family. There are three main benefits: a reduction in the danger of AIDS and other life-threatening sexually transmitted diseases, a decrease in the incidence of promiscuity, and the ritualization of the relationship within a halakhic framework. (By "ritualization of the relationship" I mean a ceremony in which two gay people pledge that they will remain exclusively faithful each to the other and that they regard their union as a sacred bond of love and affection and this pledge is ratified, as it were, by the publicity afforded by the ceremony.)
In this regard there are two issues that must be scrupulously avoided. Firstly, under no circumstances can the creation of this bond of affection be considered to be kiddushin. Kiddushin is the ritual act by which a man acquires tutelary rights as a husband over a woman who consents to be his wife. No man can acquire such rights over another free man, nor can any woman acquire such rights over any other free woman.
[All concepts of 'the sacred bond of marriage', of romantic love, of marital fidelity, of the equality of the parties and so forth in connection with the institution of Kiddushin are later, modern, accretions that have no halakhic standing whatsoever. They do have a place within the concept of Nissu'in.]
Secondly, the financial rights of the woman within the marriage bond are secured by the Ketubbah, the marriage deed. This is a document in which witnesses testify to the fact that the husband has made financial provisions for his wife, provisions which, in theory, are to be actualized in the event of divorce or his dying before she does.
Kiddushin between two free males or two free females is technically impossible. The act of Kiddushin requires the man to give the woman an object of a certain minimal value and to warn her that by accepting this object she becomes his exclusive partner, "mekudeshet li". (This sexual exclusivity is emphasised by the terms used by the man when ending his tutelary rights over his wife by the instrument of divorce: הרי את מותרת לכל אדם "You are now permitted to any man". She cannot make a similar statement to him since, according to Torah law, he need not be her exclusive partner.) For this reason, in a commitment ceremony, any such phrase as אתה מקודש לי "Attah mekudash li" or את מקודשת ליAt mekudeshet li" must be avoided as being a halakhic impossibility. As for the Ketubbah, it is well known that the amora Ulla praises non-Jews for having refrained from three crass sins, one of which is that they did not write a Ketubbah for two men [Ĥullin 92a-b].
Nevertheless, it should not be too difficult to find aesthetic alternatives to these items which would be halakhically acceptable. In addendum 3 to this paper I provide a suggested ceremony. Click here to read the addendum for the male version or click here to read the addendum for the female version.
And it is entirely appropriate that such an effort be made. It is not only the practical issue of discouraging promiscuity because of STD's. Gays and lesbians feel the need for establishing a permanent loving relationship no less than straights. The paternal and maternal instinct is no less strong in gays and lesbians than it is in their heterosexual counterparts. Religious gays and lesbians want to celebrate and commemorate their life-cycle joys and sorrows within the framework of the religious kehillah just as straight people do. We should make the effort to find appropriate halakhic and communal avenues to facilitate these needs. And we must bear in mind that the duty that devolves upon us is not only that of finding a halakhic modus vivendi, but we must also educate our congregants into a new understanding, help them to open their hearts, respond to their fears.
One objection that could be raised to the suggested arrangement for a commitment ceremony could be that the legitimacy of the bond is based in the halakhic presumption that the male couple will never engage in mishkav zakhur. Since - according to the objection - such an avoidance cannot reasonably be presumed, the ceremony should be invalid ab initio, since everyone agrees that mishkav zakhur is one of the arayot and those that contravene this law are ĥayyavei karet, doomed to excision. This objection is a red herring. There is, in fact, no halakhic difference between the sin of mishkav zakhur and the sin of be'ilat niddah, copulating with a woman who has not bathed in a ritual bath after her last menstruation [Yerushalmi, Sotah 5:1. Shulĥan Arukh, Yoreh De'ah 183:2. (See also Rambam, Issurei Bi'ah 4:11)]: both are Ĥayyavei karet. It is commonplace that the overwhelming majority of Conservative married women do not visit the mikveh (ritualarium, ritual bath) regularly - or at all!. Based on statistical probabilities, in the case of every marriage the presumption should be that the woman has not visited and will not visit the mikveh. Yet this fact does not deter even one Conservative rabbi from performing Ĥuppah-kiddushin for any such couple. We do not pry into what happens in the couple's bedroom after their marriage; the same should apply to a gay couple. Furthermore, the bride and groom make no undertaking that they will observe the laws of taharat ha-mishpaĥah, family purity, whereas in the suggested declaration that I have included in the addendum the religiously motivated male gay couple do undertake to do their best to refrain from mishkav zakhur. Furthermore, obviously this objection is completely irrelevant as regards commitment ceremonies between two lesbians.
(3) Congregational religious observance.
On March 25, 1992, the Committee on Jewish Law and Standards of the Rabbinical Assembly adopted a statement of policy concerning gays which included the following item:
The rabbi of each Conservative institution, in consultation with its lay leaders, will be entrusted to formulate policies regarding the eligibility of homosexuals for honors within worship and for lay leadership positions.
I shall address this issue in the following paragraphs.
The objection is often raised that "out-of-the-closet" gays are not acceptable rôle models. I do not wish, at this juncture, to discuss this objection; I shall do so later on. At this point I want to relate to a corollary of that objection, which claims that since gays are not acceptable rôle models they should not serve in communal ritual functions, such as leading services, reading from the Torah etc.
Rabbi Reuven Bulka is a renowned Orthodox rabbi and posek [decisor] and also a licensed clinical psychiatrist. I quote here part of a published reply that he gave to a gay man who asked him about such matters. Here and there I have marginally changed the original wording for the sake of clarity. The original questions are in italics and the rabbi's response in ordinary typeface.
- May I lead services if I am asked? Is this permissible for someone like me, who is committed to trying to live a life of Torah and mitzvot, but who is a sexually active homosexual (who nevertheless avoids the prohibition of mishkav zakhur [anal penetrative sex]) and is "out of the closet"?
Absolutely yes. There is no such thing as someone who is a homosexual. Tendencies are not relevant. Behaviour is relevant. If you do not engage in mishkav zakhur you are a tzaddik [righteous], and worthy of aliyyot to the Torah and of being a sheli'aĥ tzibbur [prayer leader] etc.
- Should I accept aliyyot to the Torah if I am offered? At one synagogue I attend I am called up to the Torah, even though the congregation knows that I am gay; but at another, they will not call me up. Who is correct?
The ones who call you to the Torah. The others are wrong.
- Would it be forbidden for me to teach Torah? I have devoted much of my time to teaching Torah, and regard doing this as a replacement for my never being able to have children. My concern now is that, since I am an out gay man, if I were to teach Torah publicly, perhaps people would think it is OK to be gay?
No. Nothing wrong at all...
- Would there be a halachic problem with being involved in a support group for religious homosexuals, with the express intent to keep these people as observant Jews?
No [there would be no halakhic problem].
- On what grounds could this be considered as mesit [Aiding and abetting people to sin]?
- Surely, on the contrary, it is keruv [Keeping people within the fold of Judaism] and hazalat nefashot [saving human lives, or saving people for Jewish practice]?
I do not think that there is any need to add even one word to Rabbi Bulka's responses. There is no halakhic justification for denying gays any of these honours. I would be amazed if there is even one Conservative synagogue in which such honours are denied people who publicly desecrate Shabbat or who do not observe the laws of family purity. Halakhically, the non-observance of these mitzvot is no less serious than non-observance of mishkav zakhur. To permit these honours to all others and still to deny them to gays simply because they are gay is spurious reasoning and would be the height of halakhic hypocrisy. Surely, no Conservative/Masorti congregation should deny gays any communal honours that are open to all others. Again, I emphasise the need for education and guidance; and gay people should also be required to understand that some congregations cannot go as fast as they would want them to and they (the gays) should perhaps seek their legitimate needs in a more amenable congregation. The same would apply to rabbis: it is unthinkable that gays should expect every rabbi, regardless of his or her halakhic understanding, to perform for them everything that they want.
(4) Religious leadership roles.
On March 25, 1992, the Committee on Jewish Law and Standards of the Rabbinical Assembly adopted a statement of policy concerning gays which included the following item:
We will not knowingly admit avowed homosexuals to our rabbinical or cantorial schools or to the Rabbinical Assembly or the Cantors' Assembly.
I shall address this issue in the following paragraphs.
Even though a gay man is exempt from the duty to marry and procreate (and a woman is exempt whether she is gay or not), this does not mean that they cannot "produce" offspring in another sense. Several modern rabbis have suggested that in place of the duty of procreation, religious gays should take upon themselves the task of educating others (both children and adults) in Torah. In a beautiful letter to a religious gay person which, with a slight change, appeared in the spring issue of Jewish Action Magazine, 1998, Rabbi Aharon Feldman (currently the dean of Ner Israel Rabbinical College in Baltimore, USA) writes:
I believe that the course you have taken is correct: you must refuse to deny your nature as a homosexual while at the same time refusing to deny your Jewishness. There is no contradiction between the two if they are viewed in their proper perspective... Whatever the source of this nature, be it genetic or acquired (and the Torah does not express any view on the matter), is immaterial. This nature in no way diminishes or affects the Jewishness of a homosexual. He is as beloved in God's eyes as any other Jew, and is as responsible as any Jew for all the mitzvot... He will merit the same share in the world to come which every Jew merits...
Family and children are important in Jewish society but one who does not have these need not feel that he is not a fully-fledged member of the community. The verse in Isaiah 56:3-6, which is read by Jews all over the world on every public fast-day, is addressed to the homosexual:
Let not the saris [who is physically unable to have children] say 'I am a dried up tree.' For so saith G-d to the sarisim who keep my Sabbath, who choose what I desire, and who keep my covenant: I shall make them in My house and within My walls a monument, a shrine, superior to sons and daughters. I shall render their [lit., his] name everlasting, one which will never be forgotten...
Because he does not have a family, a homosexual can make serious contributions to Judaism which others cannot. For example, bringing Judaism to smaller communities where there are no facilities for raising a Jewish family.
Activities involving much travel, such as fundraising, a vital aspect of Jewish survival, is best accomplished by someone who is not tied down to a family. I know of a homosexual who helped establish several important institutions through his fundraising and is grateful for the sexual orientation which freed him to make this contribution.
It is no accident that homosexuals are generally more sensitive to the needs of others and to matters of the spirit (viz., the high percentage in the arts) than the rest of the population. This is because their function in society is meant to be one where their family is the Jewish people. Their sensitivity is an emotional tool which they were granted for devoting themselves to, and empathizing with, others...
I do not agree with everything that Rabbi Feldman writes here, but I greatly empathise with the warmth and humanity of his general thesis. It is clear that in this letter Rabbi Feldman, an ultra-orthodox Jew, shows a far greater sensitivity to the potential for Torah that the gay person can offer the community than the comparatively unfeeling refusal of the CJLS to consider gays for rabbinical or cantorial school.
In his last paragraph Rabbi Feldman notes something that is very important and very significant. The sexual tension generated by a homosexual orientation often serves to heighten creative output in many different spheres of human endeavour. This has been demonstrated again and again in innumerable famous instances. I include just a brief sample:
Alexander of Macedon, Richard I, Edward II, James I of Britain, Peter the Great of Russia (monarchs), Popes Benedict IX, Julius III, Rabbi Steven Greenberg (clerics), Michelangelo Buonarotti, Leonardo da Vinci, David Hockney (plastic arts), Gerard Manley Hopkins, Walt Whitman, W.H. Auden, Alan Ginsburg (poetry), Christopher Marlowe, Oscar Wilde, Terrence Rattigan, Tennesee Williams, Edward Albee (playwrights), Piotr Tchaikovsky, Gian-Carlo Menotti, Benjamin Britten, Leonard Bernstein, Cole Porter (composers), Hans Christian Andersen, Herman Melville, J.M. Barrie, Mary Renault, Gore Vidal, Truman Capote (novelists), Sarah Bernhardt, Errol Flynn, Joan Crawford, John Guilgud, Rock Hudson, Dirk Bogarde, Marlon Brando, Ian McKellan, Rupert Everett, Ellen DeGeneris (actors), Marlene Dietrich, Joan Baez, Johnny Mathis, David Bowie, Freddie Mercury, Elton John (popular singers), Billie Jean King, Martina Navratilova, Greg Louganis (sport), Alan Turing (computer science, mathematics, philosophy, codebreaking)...
and this, of course, is just a handful of famous names - a long and impressive list. Imagine how much poorer our world would be without the contribution of some of these. The Conservative Movement should not deny itself the talents of those gays who sincerely wish to serve the Jewish community as rabbis, cantors and teachers. More to the point, the Conservative Movement has no halakhic or ethical right to deny decent, respectable gays the opportunity to serve our constituency as rabbis, cantors and teachers.
On what grounds (other than a prejudice which is no longer appropriate) can such discrimination be exercised? Perhaps the rationale is that "sinners" cannot serve as rabbis. This is an admirable policy - but should it not be uniformly enforced by us? The Rabbinical Assembly has members who publicly declare that they use their automobiles on Shabbat and Yom Tov for purposes other than synagogue attendance. The Rabbinical Assembly surely must have male members whose wives do not regularly visit the mikveh. For all I know there may well be female married rabbis who do not do so either. The Rabbinical Assembly has members who openly admit that sometimes they eat non-meat products etc in non-kosher restaurants... None of these rabbis were denied entry into rabbinical school nor is their continued membership of the Rabbinical Assembly challenged by anyone (and certainly not by me). How are we to explain that the only "sinners" who are discriminated against are gays? But beyond all this: even the most severe of the respondents of the CJLS of a decade ago, Rabbi Joel Roth, conceded that it is no sin to be homosexual. So the only "sin" that the CJLS policy statement can refer to is the assumed incidence of mishkav zakhur. Whatever happened to presumed innocence? Whatever happened to "Every person is presumed to be kasher (unless they are proven to be otherwise)", [Tur, Yoreh De'ah 119]? Whatever happened to "Every Jew is presumed to be kasher" [Mishnah Berurah, 136:9]? Is it appropriate that we automatically assume that every gay male is guilty of mishkav zakhur?
[Even if our rabbinical schools insist on making that assumption that should not prevent them from accepting female homosexuals into rabbinical and cantorial schools; as ridiculous as it sounds they could even require male gay applicants to sign an undertaking to refrain from Mishkav Zakhur!]
Perhaps it was thought that an "out-of-the-closet" gay person is a bad rôle model? Why? Because he or she does not create a family? Do we accept into our rabbinical schools only married people? Do we require our rabbinical and cantorial students to affirm that they will marry and procreate? Do we oust from office all rabbis and cantors who are not married? Perhaps we are to be wary that a gay rabbi might seduce straight people into homosexuality. Leaving aside the question whether this is psychologically possible, I cannot understand why this issue should be of greater concern than the possibility of sexual misconduct by heterosexual rabbis, cantors and teachers. The Rabbinical Assembly has created organizational mechanisms to deal with such issues: those mechanisms would be just as effective as regards gay misconduct as straight misconduct. But, moreover, if, despite all the prejudice against gays that undoubtedly exists in our congregations, a person declares that they are gay and that they want to be a rabbi (or a cantor, or a teacher), then they will be all that much more careful to observe all the requirements of religious propriety scrupulously. That a gay religious leader will behave with impropriety is less likely than that a heterosexual religious leader will do so.
Perhaps it could be argued that no congregation would accept an "out-of-the-closet" rabbi as its spiritual leader. That is a moot point: the proof of the pudding will be in the eating. Similar dire prophecies were made several decades ago concerning women serving as rabbis: time has proven those prophets to be false prophets. Does anyone seriously doubt that in this 21st secular century that there will be Conservative congregations that will accept a gay rabbi as their mara de-atra? But even if there is not even one, that is no excuse for denying gays the right to study Torah in our rabbinical and cantorial schools and our teacher-training institutes. If we do not concede the right of gays to learn in our Torah institutions we are admitting that those institutions are mere 'rabbi factories'.
Perhaps it could be argued that "legitimizing" homosexuals would have the same result as the legitimizing fifty years ago of the use of the automobile on Shabbat and Yom Tov. It is no secret that I question the halakhic wisdom of permitting the use of the automobile, and it will be readily acknowledged that permitting the use of the automobile for travel to synagogue has become for the majority of Conservative Jews the equivalent of permitting its use for all purposes. However, the "legitimizing" of religious gays is a different matter. It only affects gays and there is no way that they could legitimately take advantage of it and extend its application. The "legitimizing" of the homosexual is better compared to the "legitimizing" of the woman in Jewish practice: once done it cannot be extended because it is whole in itself.
SUMMARY of Part 2
It seems reasonable to draw the following conclusions from the discussion in Part 2. There is no halakhic or ethical justification for excluding gays from congregational rights and honours, including leading the services, reading from the Torah, teaching and preaching and so forth. Therefore it would now be appropriate for our halakhic authorities to instruct rabbis and congregations to avoid discrimination against gays as such in these matters.
The celebration of commitment ceremonies would not be forbidden if there is no incidence of kiddushin or the language of kiddushin, and provided that there is no document which resembles the ketubbah in its content, format, purpose and signature. The celebration of commitment ceremonies may well be a positive contribution in that it would reduce promiscuity and reduce the danger of mortal disease. Therefore it would now be appropriate for our halakhic authorities to permit rabbis who are prepared to officiate at commitment ceremonies so to do, but we should postulate that those commitments be endogamous and monogamous.
To deny gays and lesbians the right to study Torah in our rabbinical schools is folly in that they have as much to contribute to the enhancement of Torah as anyone else and they may even serve as mara de-atra or marta de-atra in a congregation that will accept them. Therefore it would now be appropriate for our halakhic authorities to consent to the admittance of all seriously and appropriately motivated gay people into our rabbinical schools, cantorial schools and teacher-training institutes.
The Gemara [Ĥullin 6b-7a.] records that once Rabbi Me'ir ate a vegetable grown in Bet She'an during a shemittah year and that Rabbi Yehudah ha-Nasi used that precedent in order to declare that Bet She'an was permanently released from the strictures of shemittah, even though it was obviously well within the borders of Eretz-Israel. The opposition to this move was very vocal: "How can you permit something that was expressly prohibited by all your predecessors?" Rabbi responded first by bringing an analogy. During the desert wandering Moses had created a bronze serpent which was given the name "Neĥushtan"; for the full story see Numbers 21:6-9.. This bronze serpent had been preserved, but by the time of King Hezekiah it had become an object of idolatrous veneration. King Hezekiah did not hesitate to destroy this artifact made by Moses [2 Kings 18:4]. Rabbi asked his critics how they would explain that righteous kings who preceded Hezekiah, such as Asa and Jehoshaphat, did not destroy this artifact, even though they were zealous in removing other forms of idolatry - and yet Hezekiah did so. "His predecessors left him room to make a name for himself. In the same way my predecessors have left me room to make a name for myself." On this incident Rashi comments: "If our successors do not find something to put right how will they make a name for themselves?" Is it too fanciful to suggest that the predecessors of our generation have "left us room to make a name for ourselves"? Is it too fanciful to suggest that our generation must make a name for itself by "putting right" the status of religiously observant gays? Surely, the time has come.
In his responsum of a decade ago Rabbi Elliot N. Dorff wrote:
Taken together, these data are sufficient for me to affirm confidently that we should no longer see homosexuality as a moral abomination. The tradition, in saying that it was, clearly assumed that sexual attraction to, and sexual intercourse with, people of the same gender were totally voluntary. We certainly know enough by now to assert that that is a factual error.
In an article entitled "Dr. Laura Misguided On Homosexuality", June 2, 2000 / 28 Iyyar 5760, Rabbi Shmuley Boteach has written:
Religious people should finally get over their all-too-apparent homophobia and reverse the discriminatory policy which says that homosexuality is an aberration marked by God for special censure. Like heterosexual men and women, gays are God's children, capable of bringing light and love to a planet whose darkness is caused not only by sin but also misguided judgmentalism.
12th Sivan 5763
June 12th 2003
Rabbi Simchah Roth