Dear David – Notes

NOTE #1:
The Hebrew text is from the version translated into Hebrew by the late Rabbi Yosef Kafi&#293, slightly edited. The English is from the translation by Shlomo Pines, also slightly edited.

NOTE #2:
This refers to 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.

NOTE #3:
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.

NOTE #4:
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.

NOTE 05:
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.

NOTE #6:
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?

NOTE #7:
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."

NOTE #8:
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.

NOTE #9:
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.

NOTE #10:
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.

NOTE #11:
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…

NOTE #12:

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.

NOTE #13:
"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].

NOTE #14:
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.

NOTE #15:
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.

NOTE #16:
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.

NOTE #17:
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."

NOTE #18:
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:
1. 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.
2. 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.

NOTE #19:
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.

NOTE #20:
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! Also, see what I wrote in note #4 above.