response to the roth tshuvah on homosexuality
in formatted, printable .doc format.]
With the Conservative Movement’s Committee on Jewish Law and Standards (CJLS) having reopened the “question of homosexuality,” and with a ‘split decision’ anticipated by some, this paper attempts to review the movement’s current position, the structure of its argument, the interpretive paths it opted not to take, and the nature of its methodology.
The tshuvah by Rabbi Joel Roth endorsed by members of the CJLS in March, 1992 (the “1992 tshuvah”) makes the following argument:
1. Male “homosexuality” is clearly and absolutely prohibited by the Torah and oral law, and female “homosexuality” by the rabbis. The question, then, is whether the reasons for doing so can be discerned and examined.
2. The reasons are unclear, but the word toeva suggests that homosexuality is “unnatural” for humans, which is plausible, and therefore cannot be overturned.
3. Although recent scientific advancements question this premise, they do not completely undermine it. Some even reaffirm it. Therefore, nothing in recent scientific advancement can justify a reversal of the halacha.
Part 1 of this paper shows how the 1992 tshuvah was constrained by an inaccurate and halachically improper linguistic and conceptual framework, and argues moving away from non-halachic terms such as “homosexuality,” away from misleading characterizations of sexuality as a “lifestyle,” and toward a richer understanding of the consequences of the movement’s position on homosexuality. While the end of the 1992 tshuvah did acknowledge the place of halacha l’maaseh, the tshuvah declined to allow the real-world consequences of the movement’s position to influence its reasoning. This refusal, coupled with its (presumably unintentionally) anachronistic and homophobic conceptual framework inherited not from halacha but from contemporary non-Jewish culture, effectively decided the issue before the halachic discussion even began. Most importantly, understanding that “homosexuality” is never discussed by the rabbis and is an anachronistic projection of a concept not invented until the 18th century, invites a more careful reading of the sources supporting the first part of the argument above – namely, that “homosexuality” is clearly and absolutely prohibited by the Torah. The expansion of the Torah’s and Talmud’s narrow prohibitions to include all of “homosexuality” is not supported by the text..
In Part 2, I engage with the next step of the 1992 tshuva’s argument, exploring its understanding of the term toeva. I heavily critique that understanding, which is grounded first in homiletical wordplay and second in internally inconsistent application of pseudo-science. While the 1992 tshuvah make several logically insupportable leaps to say that “homosexuality” is “unnatural,” and that this view is somehow echoed in the Torah, I argue that it is far more plausible to understand male-male ritual sodomy in the context of taboo (perhaps etymologically related to toeva) since we know that it was part of Canaanite idolatrous practice. “Nature” has absolutely nothing to do with it.
Having shown that there is no Torah or Talmudic prohibition on “homosexuality,” only on a particular form of male-male ritual sexual activity, the remainder of this paper touches briefly on three related issues. Part 3 deals with female sexuality, Part 4 with gay marriage, and Part 5 with the 1992 Tshuvah’s use of science.
The first major issues in addressing the question of homosexuality and halacha are threshold issues which must be addressed at the outset, because they shape how we are to proceed. The first and most important is to recognize that ‘homosexuality’ is not a halachic category. We may define the term in a unique way to limit it to male-male sex acts, but that is not the way the term is used today. In fact, one of the greatest shortcomings of the 1992 tshuvah is its carelessness of rhetoric. Several times, the Tshuvah says “male homosexuality is forbidden” or “female homosexuality is forbidden.” This is woefully inaccurate, as will be described in detail below. Therefore, although this paper does attempt to reflect on the “question of homosexuality,” it does so from the position of denying that there is a single question. Men and women fall under completely different halachic categories. Sexual orientation or identity is completely unknown until the modern era. Talking about Talmudic attitudes toward “homosexuality” in general is anachronistic, and harmful to understanding what the Rabbis do say about particular LBGT acts and identities.
The term “homosexuality” was coined by the German-Hungarian Károly Mária Kertbeny in 1869. Before that time, acts of sodomy were regarded in different ways by different cultures. Islamic societies, for example, strongly disapproved of men who played the receptive role in same-sex intercourse, but had no prohibitions on the active role until the 19th century, under the influence of European civilizations. Jewish sources do not tend to differentiate behavior in this way, but it is critical in understanding Leviticus 18 and 20 that they do not use terms such as “homosexuality” either. In progressing from those prohibitions through Maimonides, therefore, it is essential that we understand Maimonides as expanding the earlier prohibitions, not merely interpreting them, and as conflating different prohibitions against different kinds of behavior because of societal pressures in his own cultural context. This linguistic and conceptual precision, as we shall see in much more detail below, has considerable substantive consequences.
The second threshold issue is to understand the relevance of social context to the halachic methodology under discussion. Simply put, our interpretive posture vis-a-vis halachic texts is influenced, heavily, by the conditions the halacha imposes upon the Jewish population. As is well known, rabbis take exceedingly strained readings of texts to establish leniencies, and also to establish new strictures, which they believe are necessary for the well-being (spiritual, psychological, financial) of the Jewish people.
Although the 1992 Tshuvah at times recognizes and condemns persecution against gays and lesbians, these moments seem to have no halachic bearing whatsoever. This is quite bizarre, since in traditional sources the mere discomfort of a particular halachic viewpoint causes the decisor to adopt an alternative. The standards of review, in short, are affected by the hardships that may be caused by a particular reading.
Consequently, in the pages that follow, I will attempt to articulate readings which are “at least defensible” or “internally coherent” or, when I am desperate, “conceivably true.” There are many times when I believe the interpretations below to be more coherent, more defensible, and more true than those offered by the 1992 tshuvah and others. However, even if the interpretations are not such, they may still be halachically preferable because of the intense suffering we now know to be caused by anti-homosexual halachic decisions.
In order to do so, it is important to spend some time building the case that the 1992 tshuvah causes pain, suffering, and death, before moving on to the textual analysis of the Roth tshuvah and its sources.
Suicide is the leading cause of death among gay and lesbian youth nationally. Almost half of gay and lesbian teens state they have attempted suicide more than once; fully 30% of gay youth attempt suicide near the age of 15. 276,000 American teenagers try to kill themselves every year, and it has been estimated that as many as 30% of the completed youth suicides in the United States involve, as contributing factor, confusion over identity and or isolation because of sexual identity. Gays and Lesbians are two to six times more likely to commit suicide than heterosexuals. 28% of Gay and Lesbian youth drop out of school because of discomfort in the school environment. Even in today’s liberalizing climate, geographical and cultural variation maintain the homophobic conditions in which LBGT youth frequently grow up – and, of course, the opprobrium on the part of churches and synagogues maintains that. (Sources and more information: Taylor Hospital, www.grieflossrecovery.com, Bisexual/gay/queer Male Suicidality page.)
There are many closeted gay men and lesbians in key Jewish institutions, including JTS, including in leadership roles. There are thousands more in synagogues and Jewish organizations. The pathology of the closet does great harm both to these individuals, and to klal yisrael. It is unlikely that anyone who has not been closeted himself or herself can truly understand the psychological mutilation this condition causes. Personally, I considered suicide on a regular basis throughout my teens and early twenties. As I have described elsewhere, I pleaded with God, over and over and over again, to make me straight, or to make me stronger. I could not understand why God would do this to me. Rationalizations came and went – I was cut out for a religious life, undistracted by love; this was meant to teach me something – but none of them stuck. (That first one is particularly un-Jewish, as well.) Between the ages of 18 and 28, I had exactly one loving relationship, for about three weeks. Imagine that kind of starvation, consider the permanent effects it has, and think of the deformity of the human soul caused when it punishes the part of it that loves, squelches precisely what should be nurtured.
This experience is not unique to me, of course. In addition to suicidal feelings, repression causes distortion in sexual desires: as recent scandals have shown, closeted gays may be attracted to inappropriate sexual partners, and may act out (God forbid) the violence they feel toward themselves upon other people. Thankfully, I have never been a part of such behavior, on either the perpetrator or victim side. However, I know that it has gone on within some of the Conservative movement’s most cherished institutions, and I know it has happened because of repressed sexuality, because I know the perpetrators personally.
Finally, repression distorts more than just sexual drives.
Personally, until I came out – which was a long process, beginning six
years ago but ending only three years ago – it was as if I was leading
someone else’s life. My career was not what I wanted to do.
I could not form intimate relationships with friends or relatives – in
fact, I had no idea how distant my relationships were until the last few
years. Although I collected certain achievements, I was not ‘connected’
to them. For all my success, I felt as though my entire life was
being wasted. As you read these words, there are people being psychologically
mutilated – I am choosing these words carefully, based on my own experience
– by social forces, of which the Conservative Movement’s position is one.
Denying that these pathological distortions of the human soul are a direct
consequence of “Judaism’s” position on homosexuality is false consciousness,
and not proper halachic process.
I cannot think of another CJLS-endorsed halachic decision which causes psychological torture. The 1992 tshuvah analogizes this issue to that of a kohen who doesn’t get to serve in the Temple, or to an animal that is decided to be unkosher. This not only bespeaks a lack of sensitivity, which, to give the tshuvah the benefit of the doubt, we may suppose is born of ignorance. It renders the 1992 tshuvah unsupportable, because it is based on a woefully incomplete analysis of halachic context.
No one is asked to sacrifice as much as believing gay Jews. And the sacrifice is impossible. I am on listservs and discussion groups that include tortured, closeted, repressed Jews who still hold to a traditional view of homosexuality. I am confident that if Rabbi Roth honestly engaged with the pain that these Jews are in, he would understand that this is not an issue of preference, or political correctness, but a simple binary choice: either God was wrong to create gay people, or we are wrong to read Leviticus as we do. It is impossible that the Jewish God creates gay people and then requires them to suffer lifelong repression, self-hatred, and psychological mutilation. These are not the netivot shalom that the Torah is supposed to be. There are halachot saying that thorny lulavim are pasul because they cause pain. This reading of Leviticus and the Talmud causes death.
(Of course, for most teenagers in the Conservative movement these days, the position of the law committee doesn’t matter much, and it is the movement, rather than themselves, that is seen to be alienated from God. In my Sunday school class in Brooklyn, three students said that one of their best friends is gay or lesbian. For them, there is another danger – that through its intransigence, and through its increasing distance from what ordinary Jews actually think, the Conservative movement will itself become irrelevant. But there will be those who do believe, who do want to fulfill the mitzvot, who might even want to become rabbis – and it is precisely these gentle souls who are crushed by the current position.)
I would demand that every member of the CJLS visit shelters for runaway gay youth, interview gay and lesbian conservative Jews who hid their sexuality because of fear of reprisal, and read some of the copious literature on the pathologies of the closet. They will come to understand that God could not possibly ordain this state of affairs. And they will then understand that, even if a tortured, labored reading is required – which I do not believe to the be the case – then such a reading must be taken in order to accurately understand the core texts of the halacha. To repeat, this is the case not because we are bending over backwards to make people comfortable, but because the consequences of the closet are fundamentally incompatible with foundational principles of Jewish theology and law. We must be getting something wrong.
In contrast to all of the foregoing, the 1992 Tshuvah states, in its second paragraph, that “homosexuality” is a “lifestyle.” In many ways, the tshuvah is decided right then and there. If this is a question of lifestyle, then it’s over. Clearly, the plainer reading of the sources is that the homosexual lifestyle is not to be preferred – precisely because it was seen as a lifestyle choice.
However, homosexuality is not a lifestyle. In fact, if I can risk a little rhetoric of my own, closeted homosexuality is a death-style. Personally, my sexuality is either inborn or as much a part of my conditioning as your sexuality is of yours. I tried very hard to change it, in all sorts of ways. I have not had my hypothalamus measured by CAT scan – one of the physical indicia of homosexuality, which has been proven in the twelve years since the 1992 tshuvah – but, honestly, I don’t need that kind of verification. In my twenties, I would have done anything to be heterosexual. I was not leading any ‘lifestyle’ at all; I was repressing something that I did not choose, and was leading a death-style – separated from my capacity to love, hiding, constantly afraid (what if Ramah found out? what if JTS found out?), lying to everybody - friends, family, everyone. Imagine lying to everyone you know.
The 1992 tshuvah later says that we understand that homosexuality is not chosen. And yet, the word “lifestyle” suggests that it is. It is not a “lifestyle” to use crutches if your leg is broken. It is not a “lifestyle” to wear shoes if you are walking on broken glass. These are what you do in order not to be hurt. While that is a somewhat negative way of casting the decision to embrace love and find a life-partner, I hope it clarifies why the word “lifestyle” is itself hurtful, divisive, and foreclosing of important debates. I think it is quite reasonable for halacha to prescribe lifestyles. But it is inconsistent with fundamental norms of Judaism for it to prescribe a deathstyle.
Now, in the Talmudic context, homosexual behavior was, indeed, a lifestyle. The rabbis treat it as a set of behaviors – mishkevei ishah, maasei sdom, etc. It was something one decided to do or not do. This was consonant with their social context, in which men who did marry and produce children also had fleeting sexual affairs with young boys. The boys were objects of pleasure (see Homosexuality and Civilization, which came out last year). At the same time, there were also those who reversed that practice and allowed themselves to be penetrated, and the Rabbis were contemptuous of that. There were also men who left their wives, or were unfaithful to them, to engage in such conduct. But think these texts are beside the point, because they are not talking about homosexuality - they are talking about homosexual acts. The texts we should be looking at are those about gender identity, particularly ‘in-between’ gender identities such as the tumtum and androgynus. That is a more analogous situation to an inborn, biological trait.
One of the most disastrous consequences of believing sexuality to be a “lifestyle choice” is the espousal of conversion therapy toward the end of the 1992 tshuvah. The tshuvah claims that this therapy works in 50% of cases. That is a canard. Studies show that it works in a small percentage of cases – estimates are between 5 and 10 percent – and causes grave psychological damage in about a quarter of those upon whom it is inflicted. It is aversion therapy, which often uses pain and negative reinforcement to cause. It is not therapy to understand supposed gaps in one’s sexual development as understood by Freud, or therapy in some ordinary psychotherapeutic sense. It is about learning to be repulsed by men. If a future tshuvah insists on discussing “conversion therapy,” its author should investigate it fully. It as a form of mutilation that itself should be assur. I know people who have gone through the therapy, time and time again, because of frum parents who are convinced that sexuality must be something that can be “converted.” It is a disgusting, aberrant, and abusive practice. Even the thought that people are undergoing it fills me with righteous indignation. Rather than advocate this “therapy,” the CJLS should categorically forbid it under halacha. It is a crime, like sexual or emotional abuse, and an abhorrence.
To reiterate, the issues discussed in this first part are not merely questions of mere rhetoric. If you really believe an “open” gay life to be a “lifestyle,” that means you have not yet understood what we are talking about. It is not like deciding whether or not to be shomer shabbat, which involves some sacrifice but which is mandated by halacha. It is deciding whether or not you are going to hate yourself, for your entire life, or whether you are going to finally accept who you are.
The anecdotes, statistics, and conceptual matrices in this part
are not “gay rights” propaganda; they comprise the reality that every LBGT
person faces. For myself, I had what I call a “Huck Finn” moment:
in Huckleberry Finn, Huck decides that he’ll go to hell and protect Jim
rather than go to heaven and turn him in. I had to decide to go to
hell, to give up on trying to be a certain kind of Jew – and, because God
is real and God’s love is real, what ended up happening was as I embraced
my sexuality it became much easier and much more beautiful to keep shabbos,
kashrut, etc. Please understand that the concept of “lifestyle,”
and the consequence of “unhappiness,” is part of the problem.
If we discard the terms “homosexuality” and “lifestyle,” and if we are mindful that we are operating in a context of fear, suffering and death, then we can begin the linguistic analysis of the prohibitions of the Torah and halacha. Thus, I now turn to the concept of toeva as treated in the tshuvah, which is at the heart of the tshuvah’s understanding of homosexual acts.
Of course, the Conservative movement does not read the Torah apart from the Talmud and commentators, but the tshuvah itself proceeds in this way, focusing largely on the Levitical term toeva. Therefore, although there are many other sources that are of import, I will follow the reasoning of the tshuvah and its discussion of toeva.
Bar Kappara, as noted in the 1992 tshuvah, relies on unconvincing wordplay to explain that toeva means toeh atah bah – you err through it. At the outset, it must be said that this use of wordplay is totally incompatible with the halachic context of this decision; should the question of whether some gay teenager is accepted or shunned by his family depend on wordplay? Could we not find a more sincere and serious way in which to go about our halacha? Moreover, Bar Kappara’s understanding of toeva is entirely based in his cultural context, as the 1992 tshuvah itself says. So why use it now? I would prefer to try to understand what the word means, using our best available understanding, but if we’re not going to stick to the text itself, then why not invent a new, contemporary wordplay that defines toeva permissivley? So, while I will follow the Bar Kappara line for a moment, the whole discussion of the 1992 tshuvah seems irrelevant, as the Leviticus text itself – contrary to statements in the tshuvah – does unpack the meaning of the term for us, as I shall try to show later.
The tshuvah argues that Bar Kappara’s toeva=toeh atah vah equation implies being ‘drawn away’ from one’s wife, including being drawn away before one even has a wife, i.e., by preferring to live (or just have sex) with men. That is, gay people may be dissuaded from marrying women to begin with, which leads to a societal ‘drawing away.’ This overall ‘drawing away’ is linked to concerns about procreation. Once more, I feel obliged to pause and observe how insufficiently the tshuvah treats the consequences to both the husband and the wife in a marriage forced together when the man is incapable of fully loving his wife; I know from reading the testimonies of partners in such relationships that it is often (not always, but often) a hellish and emotionally arid way of living. Is this not also a ta’ut? However, even if we proceed with the tshuvah’s argument, there are several objections with how it plays out.
The tshuvah’s first major argument, linking toeva with “unnatural,” is quite convoluted. First, it claims that toeva means one is drawn away from that which is natural, not just procreative. Then the tshuvah acknowledges that, actually, many animals exhibit homosexual behavior. So clearly homosexuality is not ‘unnatural’ in that sense, since animals do it. Therefore homosexuality is unnatural for humans. And precisely because it is possible and is found in some animals (but unnatural for humans), it is labeled a toeva, so that we not make a mistake and so something that is unnatural for us to do.
Almost every step of this argument is riddled with inconsistency.
First, the tshuvah claims that human physiology shows why male-male anal intercourse (note: this argument does not apply to “homosexuality”, although it is applied to it in the tshuvah) is unnatural for humans. However, the tshuvah omits the most important point about physiology as it relates to male-male anal intercourse: the strange fact that all human beings have nerves that experience sexual pleasure inside the anus. If physiology is to be used as an indicator of purpose – I don’t view physiology as destiny, but this is the tshuvah’s argument, not mine – then what are those nerve endings there for? If physiology is purpose, then men and women both are meant to experience sexual pleasure by having these nerves, which serve no other purpose, stimulated.
Second, the use of “unnatural” in this context is quite bizarre. The tshuvah says that procreation is the Divine purpose of sex for humans, but not necessarily for animals. This is the opposite of how “animal” sexuality has been understood for centuries of biological science, but the tshuvah does not cite a single source supporting its contrary view. In fact, most people view sexual intercourse as entirely about procreation, especially for animals – especially more for animals which may mate very infrequently. However, this point would not support the tshuvah’s argument, and it is not even acknowledged. The tshuvah’s reading of “animal sexuality” is in the sense indicated by the scarequotes: as libidinous pleasure. But this is only true of a few species, and even for the species that engage in non-procreative intercourse, some biologists suggest that they are, basically, “practicing.”
What is especially strange about this discussion is that these procreative points are usually made on the anti-homosexual side. Usually, those who seek to label homosexuality as “unnatural” say that sex is entirely about procreation, and those who seek to label it is natural point to its incidence in animals. The tshuvah takes the opposite view, but instead of recognizing that the behavior of animals is totally indeterminate, it is at pains to conclude that “it is surely possible from a halakhic perspective to call homosexuality unnatural, and mean by it ‘posited as non-normative behavior.’”
Why is this the goal? The tshuvah says it is just trying to propose reasons why the Torah might want to label homosexuality unnatural. Why is that the task? The argument scarcely says anything: toeva means unnatural, according to wordplay, and here are some reasons that, although they could just as easily be used on the other side, back up why this particular toeva is unnatural. It has not proven or disproven anything, and is basically a midrash on the word toeva, together with evidence that could support it.
The tshuvah develops its “unnatural” line of argument with recourse to philosophy and science. Here, I will not even engage with the tshuvah’s selective reading of Plato (who actually saw same-sex love as the best embodiment of the Divine, but who is here used for homophobic ends), Kant, and Kinsey. It is such an idiosyncratic and spotty treatment of the subject that I believe it to be the weakest part of the whole tshuvah. With no offense to the author of the tshuvah, whom I greatly respect, this part of the tshuvah is, to a philosopher or a gender theorist, an embarrassment. If one wishes to seriously discuss whether homosexuality is natural or unnatural, whatever those terms mean, one must engage with gender theory, with up-to-date science, with social theory that is aware of the dynamics and pathologies of homophobia (many of which animated Kant), and with sources that are enriched by the last hundred years of psychology, sociology, physiology, and neurology. Its amateurish generalizations do not befit the author’s well-deserved status as a thinker or posek.
Next, the tshuvah does acknowledge that “natural” and “unnatural” are societally constructed terms. However, then says: “For a religious tradition to call a type of behavior unnatural may well reflect its biases and values. But, then, isn’t that part of what religious traditions are supposed to do?” No! “Unnatural” is a scientific designation, not a religious one. It is then wielded by religious bigots as a club against those who do not believe in purely religious phrases such as “against God’s will.” I would ask Rabbi Roth to pause and reflect about how he has armed these bigots with this weapon – a weapon not from halacha, but, indeed, cribbed from the ahistorical, non-scientific notes of the bigots themselves.
“Unnatural” is a massive conclusion, and a huge leap of halacha. Unlike “taboo,” which is essentially my reading of toeva, it places a universal judgment on everyone – an ethnocentrism hardly warranted today. It is based on contradictory readings of procreativity (which is found in animals and is therefore natural) and sexual pleasure (which is found in animals and is therefore unnatural). And its enuous reasoning comes crashing into a truly awful point: that the way God made me is unnatural. Call it evil, despicable, against God’s will. Those are terms of religious vocabulary. “Unnatural” is a pseudo-scientific term of bigots, and has been used against Jews so many times in our history that I am shocked to find it in a tshuvah.
I would strongly, strongly urge a consideration the origins, bases, and worthiness of the “unnatural” conclusion. Where does it come from? What does it do? How does it subtly elide an important distinction – between a world of religious values that may have no ground in ‘nature’ (e.g., the ashes of red heifers) and non-religious values that extend beyond religion’s purview?
If everything is unnatural is forgiven, let’s start with factories, plastics, and automobiles that destroy our natural world. And while we’re at it, let’s ban music, which is not really natural either. And let’s make sure that industrialists and musicians are reminded that their unnatural acts are religiously forbidden. Only what is natural for humans? Too broad - that includes homosexual acts. Only what is natural in some biological way? Too narrow – that excludes much of human life. The whole category is incoherent, and would be laughable if it didn’t cause teenagers to hate and kill themselves.
The final point regarding toeva is a jurisprudential one. The tshuvah says at the outset of its discussion that “even if [the interpretations] are found wanting, that means only that the interpretations are inadequate, not that homosexuality is not toeva.” This is jurisprudentially insupportable.
First, if the interpretations are inadequate, we are naturally invited to wonder what other interpretations may be more adequate. The discussion of toeva, drawing away, unnaturalness, and procreativity is marked by an unstated jurisprudence that if the “pro-gay” side can’t prove its case absolutely, the “anti-gay” reading must stand. Why is this the assumption? Simply because it is the precedent? I would think, if we have a case in which a (mis-)understanding of halacha is causing widespread behavior that is contrary to basic Torah values – life, Torah, service, gemilut hasadim – we would have the opposite approach: that if there are at least equally tenable grounds for both sides, we would take the side that chooses life. One could just as easily provide a different definition of toeva – as I will do in the next section – and adduce evidence for it. In fact, I think I can produce much less ambiguous evidence for my definition than the 1992's tshuvah. And my definition has the advantage of being consonant with core Jewish values such as life, love, and respect, whereas the 1992 definition has the l’maaseh consequences of death, repression, and hatred.
Second, because of its inadequate interpretations, the tshuvah also accepts later authorities’ expansion of the Levitical prohibition, denies any limitation of the halacha based on inaccurate categories, and adopts a wholly non-Jewish reading of homosexuality as “unnatural.” Through wordplay, circular argument, and internally contradictory science, the 1992 tshuvah makes halachic matters worse for gay people: “homosexuality is unnatural” has entered the halachic discussion.
Now I would like to explore a positive reading of toeva which the 1992 tshuvah did not even address: namely, that it is only within the context of idolatrous religious practice that the forbidden toeva takes place. It may be a strained reading to say that only male-male acts in the context of an idolatrous ritual are forbidden – by that logic, shrimp (also a toeva) should be permitted most of the time also. But I am not basing this reading on the word toeva alone. Unlike the kashrut laws, the laws of homosexuality only in the context of prohibitions on idolatry (e.g. in Leviticus 18, where Molech worship is juxtaposed with the sexual prohibitions) -- and, arguably, as practices of idolatry. I will not suggest this is the plainest reading of the text. However, if we were absolutely convinced that the Torah could not possibly mean to condemn loving, God-fearing gay people to suicide or repression, if we were, due to that conviction, convinced that the most implausible reading is nonetheless the correct one, because the alternative is so horrible and so against the fundamental principles of Judaism – is this not a plausible way in which to reconcile an otherwise intractable contradiction?
This same premise distinguishes some of the cases brought up by critics of any more permissive position: incest, bestiality, etc. There are three replies which we can make at the outset. The first is to – with rage contained – question whether the mutual, consensual, and beautiful love that one man or woman feels for another – is the same as incest. Incest is not a result of inborn biological traits; homosexuality is. Incest involves an abuse of the family bond; same-sex relationships do not. Someone who commits incest has alternatives; the gay man does not. These distinctions have legal significance. The second response is to reaffirm that none of the ‘heightened scrutiny’ -- to pick up on the tshuvah’s legal language of “compelling interest” -- we apply to homosexuality applies to incest. This argument is used by the U.S. Supreme Court all the time. Different types of cases invite different kinds of scrutiny. There is no compelling interest associated with incest laws; there is regarding homosexuality. Thus it is perfectly acceptable to apply different levels of hermeneutical attention to examining such laws, reading a broad prohibition against incest, but only the narrowest possible one against male homosexuality when such acts qualify as a toeva, i.e., when they are part of avodah zara.
The final reply is to note that the text itself, in Leviticus 18 anyway, reflects these distinctions. The various incestuous ervot are not described as toeva. Nor is bestiality. Although they may be subsumed in the blanket injunction in Leviticus 18:26, one is still begged to ask why men engaging in mishkevei ishah is specifically identified as a toeva earlier. If it is only the blanket toeva that matters, then why repeat the term toeva here? Further, in Leviticus 20, other terms are used for these forbidden relationships – zima and tevel. While I will not spend the time necessary to unpack all of these terms, the point is that the “slippery slope” does not exist. Even apart from our compelling interests today, the text itself treats male-male homosexuality differently from the other prohibited sex acts. The Torah goes out of its way to say what is forbidden is toeva-male-anal-sex, in contrast to non-modified incest, bestiality, etc.
Contrary to the 1992 tshuvah’s reading of toeva as being in some way connected with “nature,” we know that it is not a universal/natural category at all but is, in fact, the epitome of cultural relativism. As the tshuvah itself states, Genesis 43:32 says that the act of acting with Hebrews is toeva l’mitzrayim. Is eating with Hebrews somehow “unnatural”? Is it an “error” to eat with other nations – a position that does have considerable rabbinic precedent behind it, but has nonetheless been discarded by the Conservative movement? No – surely we see from Genesis 43:32 that toeva is not merely “an attributed quality” but one that is culturally relative. That which is toeva for one is not only permitted for another – but it may be toeva for one precisely because it is sacred to another. Although apparently not related to the word taboo, that is the general meaning of toeva.
(FN: Taboo has its origin in the Tongan word tabu, and entered the English language, and other European ones, in the eighteenth century. Like various Sanskrit words that seem closely related to Hebrew ones, the likeness of ‘taboo’ to ‘toeva’ is quite curious, if nothing more.)
The 1992 tshuvah states that “These verses seem to me to be claiming that these acts are abhorrent because the Torah has already defined idolatry as abhorrent.” In the reading being proposed here, something is toeva because it is idolatrous – i.e., because it involves an impermissible imitation of or mixing with other nations. Toeva means “doing what they do.” And what is it they do? In understanding what the particular act is that is prohibited, we must understand it, using heightened scrutiny, as an act which is itself idolatrous. Male-male anal sex outside the context of idolatry is no more forbidden than building a fire. Both were used in idolatrous practice, but only when the fire is used to heat the iron of Molech, and only when the sex is used in idolatrous rites, are the acts forbidden.
To be clear, I am not arguing that the Torah prohibits an act in one context, but when the context is absent, the act is permitted. I am arguing that the act-in-context is the act being forbidden. The word toeva signals to us that it is a particular, ritual sex act that is being prohibited.
What is the evidence for this position?
The 1992 tshuvah says that the Torah “does not define why it [“homosexuality”] is to be considered toeva.” But in fact, the Leviticus text itself explains why the toevot are prohibited: because the other nations defiled themselves with them, and defiled the land with them. As with all halachot when a reason is provided, we are thus invited to ask: are the acts intrinsically defiling – or were they used in a process of defilement, and it is in that process (and perhaps only in that process) that they are forbidden? What does it mean that the land was defiled? Is this some sort of mystical or magical defilement, whereby the sexual acts of a land’s inhabitants pollute the land like the discharge from a factory? Seems unlikely. It seems more plausible to observe that the nations were seen as defiling themselves and the land in general, and these were among the practices that they engaged in in the context of that defilement.
Further, we know about the kedeshim in Canaan, mentioned in Deuteronomy 23:18 and in 1 Kings 14:24. We know from the Bible itself, from archaeological evidence, and from other texts how the male (and female) holy prostitutes of idolatrous religions participated in orgiastic ritual. In fact, whereas the Conservative Movement might generally be reticent about admitting too much Biblical criticism into its jurisprudence, here the text of the Torah itself explicitly says that the reason for the prohibitions is the behavior of the nations. Therefore, it is quite appropriate to make use of our best available archeological knowledge to fill out this picture. And what do we know? That, indeed, male-male ritual anal intercourse was part of the idolatrous rites practiced in Canaan. This is neither wishful thinking nor a mere textual juxtaposition (although the latter is sufficient grounds for many of the laws of Shabbat). That kadesh does not merely mean “prostitute” (as it is misleadingly translated in the 1992 tshuvah) but, as the word implies, sacred prostitute. This is a case in which the Torah tells us exactly why something is toeva, and archeological and extra-textual evidence agrees.
In short, the Torah text is unambiguous that it is concerned about acts the nations committed. We know from history, from archeology, from the textual language, from the textual juxtapositions, and from the prohibition against kedeshim, that what is being spoken about here are idolatrous, foreign religious practices. Before any tshuvah turns to the treatment of homosexual acts in the Talmud, then, to my mind it must come to terms with the narrowness of the Levitical prohibitions.
Finally what is actually prohibited – mishkevei ishah -- is ambiguous. It strikes me that, in light of Genesis 49:4, which uses the term mishkevei avicha, we are too quick to assume that mishkevei ishah is a blanket prohibition on homosexual acts; in fact, in light of Genesis 49:4, we should be reticent about any interpretation of mishkevei ishah at all. As to whether both the penetrative and receptive roles in anal intercourse were prohibited, I think the text is silent. We know that it was the receptive role that was held in most contempt in the Talmudic and Gaonic periods, but the term mishkevei ishah is unclear. In addition, Leviticus 18:22 says v’et zachar lo tishkav, the use of v’et lo tishkav rather than v’im lo tishkav suggests, to me, the penetrative role. Finally, if we are correct that an idolatrous practice is what is toeva, then it would make sense that both roles were forbidden, since the prohibition would reasonably include making use of a kadesh (which meant taking the penetrative role) rather than simply being one.
To summarize: The act of male-male ritual anal intercourse is toeva to the Israelites because it is a form of land-defilement. This is supported by the concept of toeva in the Torah, the explicit statements in Leviticus, and extra-textual and archeological evidence regarding homosexual idolatrous rites. Therefore, from Leviticus itself we inherit a very narrow prohibition on an idolatrous practice which can easily be distinguished from sexual relations in loving, family relationships.
Ironically, it is the denial of such relationships that leads
to more toeva-like behavior. Happily married gay men do not regularly
visit bathhouses and have sex with strangers. Closeted gay men, including
many I know in the Conservative movement, do. The denial of legitimacy
to all “homosexuals” causes sin as well as suffering.
The 1992 tshuvah’s treatment of rabbinic material on homosexuality is surprisingly spotty. The tshuvah cites Talmudic authorities on female sexuality (discussed in part three); to show that both “active” and “passive” roles were forbidden by the sages, with men of any age; and to respond to Rabbi Brad Artson’s claim that loving same-sex relationships are not forbidden under Jewish law. It cites the Rambam for the expansion of the prohibition to any kind of related sexual behavior, although it does not seem to regard this as an expansion. And that is it, apart from the interpretations of toeva already discussed.
The sources on female sexuality are discussed in part 3, and those regarding Artson’s claims are discussed in part 4. What should be noticed here is what is missing: there is no citation other than the Rambam, who is brought to respond to a more strict view that would prohibit homosexual fantasies, to show or discuss the expansion of the prohibition. The 1992 tshuvah takes the position that “homosexuality is forbidden” on the basis of a narrow prohibition of male anal ritual sex, a toeva, in the Torah. Yes, the Rambam is more comprehensive, and clearly prohibits a wider range of acts irrespective of context. But the 1992 tshuvah seems not to even recognize this, nor to raise the complicated texts in between Leviticus and the twelfth century which show a tortured evolution of and wrestling with these themes.
As this paper is meant only as a response to the 1992 tshuvah,
not as a comprehensive survey or synthesis of halachic reasoning on homosexuality,
we will thus proceed to the cases of lesbianism and committed relationships,
as they are discussed in the tshuvah.
The 1992 tshuva’s treatment of lesbianism is appalling, and I intend to show that, even without any of the foregoing logic, there is no reason other than ignorance that prevents open lesbians from serving as conservative rabbis and cantors. Contrary to the 1992 tshuvah’s reading, it is not clear what the sin of lesbianism actually is, although, as we shall see, it has nothing to do with Leviticus 18:20.
The first line of page four of that tshuvah indicates exactly what is wrong with the reasoning, and even where the error lies: “The sages, however, have forbidden female homosexuality.” Almost every one of those terms is incomplete or incorrect. First, the sages have said nothing about female homosexuality. They have forbidden a woman to marry another woman as part of their interpretation of Leviticus 18:3, via the Sifra. They have characterized women who are mesolelot with one another as engaging in lewdness. Beginning with the Rambam (and not earlier, so far as I can tell), these two prohibitions were conflated – mesolelot, not just marriage, was described in the Mishna Torah as maaseh Mitzrayim.
So, if we were to rephrase that line, it might be “The sages, however, have forbidden women to ‘rub’ with one another, on the one hand, and to marry a woman, on the other.” Even this statement is woefully incomplete, however, and so we will begin from scratch.
Leviticus 18:3 prohibits acting “like the acts of Egypt.” The Sifra observes that, of course, this cannot mean everything the Egyptians did – and narrows the prohibition to “laws that have been established for them and their ancestors.” The Sifra then further narrows the prohibition to “a man would marry a man, a woman would marry a woman, and a woman would be married to two men.” This is quite clear. And note that it is completely wrong for the 1992 tshuvah to say that “Among the practices mentioned in the Sifra... is lesbianism.” In fact, the Sifra only talks about forbidden marriages.
Now, in the case of male anal sex, we might justify such a conflation because the act of sex could itself be considered marriage. However, the act of mesolelut (to perhaps coin a phrase) is not “sex” in this understanding, since it does not involve penetration by the genital (the use the tshuvah’s term). So “lesbianism” is not the same as female-female marriage, nor does one necessarily imply the other.
Entirely separate from the Sifra, and not mentioning it at all, is Yevamot 76a, which, as noted in the tshuvah, asks whether women who “rub one against the other” may marry a kohen. Contrasting mesolelut with zenut, the gemara is clear that it is pritzuta b’alma, which is generally understood to mean “mere lewdness.”
The 1992 tshuvah says that to read Yevamot 76a as calling “lesbianism ... some petty offense” is to miss its context. Now, all of a sudden, context is essential for meaning; this is precisely the argument that pro-gay sources have made for years regarding the statements about male anal sex, which the 1992 tshuva completely ignored. In addition, there are countless examples of halachic principles being extracted from their context and explicated on their own terms. As the author of the 1992 tshuvah knows very well, some of the most significant rules regarding women’s participation in the synagogue were derived in this way. Finally, the 1992 tshuvah omits any discussion of what pritzuta b’alma positively means. We know that mesolelut is not intercourse, and therefore not znut. So what is it? The tshuvah acts as though it is nothing, just “forbidden.” In an appositive phrase, it even says “...the act was pritzuta b’alma, not intercourse,” as if that is the only meaning the term has. This is inadequate. Even if we were not dealing with laws which cause teenagers to kill themselves and women to engage in mind-mutilating “conversion therapy,” surely the term must be explored. If it has no meaning, why is it even there?
In fact, it is the 1992 tshuvah that makes completely unsupportable, and indeed offensive, generalizations and leaps of context. Why the association between Yevamot 76a and the Sifra, two texts which deal with different (albeit related) topics? The tshuvah brings the Rambam. Now the Rambam, to be sure, does conflate these two – but the Rambam has no basis for doing so, and neither does the tshuvah. There is no analysis of these two very different threads of prohibition, no explanation of why the gemara, in not one but two places in which mesolelut is described, never even mentioned Leviticus 18:3. The tshuvah simply repeats the word “forbidden” three or four times, applies it to the non-halachic category of “homosexuality,” and argues nothing.
Here, in contrast, is an argument. Yevamot 76a addresses a borderline case of whether a particular sex act – what I have called mesolelut – constitutes harlotry. Rava decides that it does not, because there is no znut, which requires penetration. In Shabbat 65a/b, where the issue appears again, we learn of Shmuel the Amora’s father who would not permit his daughters to sleep with each other. The stama asks a reasonable question: perhaps he is afraid of mesolelut, and perhaps that fear gives support to Rav Huna’s position. But, in fact, the answer was simply that Shmuel’s father didn’t want his daughters getting used to any foreign body in bed with them. In other words, there was no concern about mesolelut, and the view that it was a serious problem was explicitly rejected.
Rashi, commenting on Yevamot 65a and Shabbat 65a/b, observes that this mesolelut was done for sexual pleasure. The Tosafot add that it was nothing more than that, rejecting a view that it was done to transfer sperm from one woman to another. None of these sources make any connection to Leviticus 18:3, alone or as understood by the Sifra. None regard it as a serious offense. That, not the Rambam, is the proper context in which to understand Yevamot 65a.
To be sure, the Rambam explicitly conflates the two sources, and prohibits any mesolelut as being part of maaseh mitzrayim. Later halachic authorities take off from there. Yet even if we ascribe halachic authority to the Sifra’s dicta, there is no justification for the conflation of the Sifra and the concept of nashim hamesolelot zo b’zo. Even the Rambam does not provide them; he just joins them together without any explanation.
If unmarried lesbians are denied entrance to JTS, then so should anyone who wears a bikini to the beach. With Rabbi Roth’s stated halachic methodology, the incorrect conflation by the Rambam should not constrain decisors today. We know that the Rambam was operating in an Islamic context in which scurrilous rumors were frequently passed regarding women in harems and in other gender-segregated environments. We know that the Rambam was at pains to distinguish the morality of the Jews from that of their surroundings. And so we can hypothesize a reason for his leap of logic. However, without that leap, lesbian activity that does not include marriage is pritzuta b’alma, mere lewdness no more severe than behaviors which can be observed at any AEPi fraternity party, Camp Ramah staff party, or JCC Singles Event.
There is no connection here with male homosexuality, no connection with toeva, no connection with “nature,” and no justification for the continued anachronism of treating lesbians as halachically identical to gay men. They are not.
This paper is not intended to speak to the question of gay marriage, a very difficult halachic problem, in light of the Sifra and other sources. However, the way it is discussed in the 1992 tshuvah opens up an interesting question regarding homosexuality in general.
The 1992 tshuvah works closely with three sources regarding same-sex marriage and polyandry, trying to refute Brat Artson’s claim that loving same-sex relationships were unknown to the Talmudic rabbis. Two words in Rashi, commenting on the Gemara in Hullin, are very instructive: kalut rosh. Rashi uses this term in describing male-male ketubbot. The question is: Why, if Gentile male-male relationships were loving, would it be kalut rosh to write a ketubbah for them?
If there is a loving male-male relationship, then perhaps it might be rebellious, or willfully evil, to write a ketubbah – but kalut rosh? The only way that kalut rosh makes sense in the Rashi is if a male-male relationship is something undeserving of having a ketubbah to sanctify it because it is not serious enough. If the relationship is permanent, loving, and committed, then it may well be morally wrong or wilfully rebellious to sanctify it – but surely it is not kalut rosh.
The Rashi applies to all three of the sources adduced in Artson’s and the tshuvah’s discussion of this issue. Polyandrous and homosexual relationships were seen to be about sexual pleasure only. (See the Prisha on the Beit Yosef discussing nashim sh’mesollelot, where he makes this point.) That is why they did not merit a ketubbah.
If this seems a fine point, consider a real-world example. Suppose we were to go to a traditional society today, introduce a lesbian couple, and tell a member of that society that the women are married to each other. Surely one of the first responses would be laughter. “Which one of you is the husband?” they might joke. We would be seen as displaying kalut rosh for sanctifying such a relationship, and after the laughter died down, we would be seen as deserving great punishment for demeaning the marriage contract in that way.
The point is: Kalut rosh does not mean honoring a forbidden-but-loving relationship. It means honoring what is not worthy of being honored, because of its intrinsically cheap status. What’s next, a museum of sex toys?
The 1992 tshuvah does not explain the use of the term kalut rosh. Artson’s view, that the sages view homosexuality as being about sexual pleasure, is indeed borne out by the Rashi’s use of kalut rosh. The tshuvah’s, that the sages knew quite well that it could also be about love and commitment, is not. I think there is plenty of room to say that what we now know about how gay families can operate qualifies as “new knowledge,” which, much more than the tshuvah’s risible use of Freud and Kant, informs our reading of halacha in a way that honors the halachic process. We are privileged to know something that the Talmud did not know, and the halacha grows as a result. We now know that gay couples can last a lifetime, in love with each other and God and Torah. And we also know that repression of gay identity destroys love, destroys the relationship with God, undermines the place where the Torah is planted in the soul.
So which path do we take?
Finally, I will only briefly touch upon a subject broached earlier: the 1992 tshuvah’s use of science, in this case, in Part III. By this point in the tshuvah, the author believes he has made the argument that all homosexuality is categorically forbidden by the Torah, that while toeva is not a clear term it seems to mean something about natural and unnatural, and that while we might disagree about the label of ‘unnatural’ there are equally convincing reasons to agree with it. Therefore, Part III of the tshuvah asks whether advances in recent science unambiguously call for a change in the halacha. It concludes that the evidence is, at best, ambiguous.
I will not discuss again the incorrect methodological assumption that underlies Part III; suffice to say that in a context of death, suicide, and repression, the halachic burden of proof should perhaps not rest on those who would ameliorate it. Moreover, some of the science in Part III is, indeed, quite current. For those parts which are not, I give the tshuvah the most benefit of the doubt, because our culture has evolved a great deal between 1992 and 2004. As the next round of tshuvot are written, hopefully these advances in science and sociology will be taken into account. I will confine myself, therefore, to a few select points within Part III which merit attention.
First, to use Freud in any non-historical, non-literary fashion is not defensible. No one in the psychoanalytic community takes Freud’s theories or conclusions as scientifically supportable today, as indebted as we all are to his advances in psychoanalytic method and in the way in which our culture understands the human psyche. Latency, Oedipal complexes, penis envy, arrested development, perversion – these are terms that have the same musty odor as eugenics or logical positivism. Even contemporary Freudians do not use the terms in the classical sense, and the contemporary Freudians are in the minority. Many of the case studies used by Freud as the basis for the theories discussed in the tshuvah have been shown to be deeply flawed. His theories are quaint. Quoting Freud as the basis for “the psychoanalytic perspective” is like discussing UNIVAC as the basis for the Internet. His science has been completely supplanted.
Next, the defense of conversion therapy, which I have already condemned, and which I think is an affirmative exhortation to self-mutilate, is located in the context of a question: “Is homosexuality really beyond choice, and if it is, what are our options?” The most important response here is that this question rests entirely on the claim that “the Torah makes a blanket statement of prohibition.” But how do we know that to be the case? Only through very ambiguous, internally contradictory sources and interpretations. How do we arbitrate between the various sources? Based on our reason, our logic, our fundamental understandings of what the Torah is trying to do. The very process necessary to arrive at the conclusion that “the Torah makes a blanket statement of prohibition” is itself dependent upon our understanding of scientific (and social) reality. It is not just the percentage of “obligatory homosexuals” that this question matters – it matters for how poskim begin l’chatchila to understand the Biblical text. If this really is a matter of “overturning d’oraita precedent,” then indeed more than just safek is required from science. But the safek is in the precedent itself.
I would be lying if I did not say that I myself maintain safek regarding my own sexual orientation. Maybe it could be changed. After all, I had girlfriends once, and it wasn’t all a lie. What I have come to realize, though, is that those doubts are remnants of self-hatred – call them “value preferences” if you like, but that is not how they play out for an adolescent – and that, while they should be recognized, they are invitations to more fear, and more self-loathing. Where are the equivalent cases within halacha? Where are the comparative analyses of when halacha bends over backwards to accommodate even moderate discomfort or pain? Do we ask every person in pain whether there might be some corrective therapy that they could undergo, so that maybe then they wouldn’t be in pain – or do we recognize it, validate their experience, and interpret our holy texts in light of it?
Perhaps, as hinted at by the last few theories of Part III of the tshuvah, people like me should just not be knocking at your door. We should see that we are genetically predisposed to exist outside normative family structures, for all sorts of elegant evolutionary reasons, and thus, we have no place within the normative structures of the Jewish people. We’re “above” all that. Well, if you want to kick me out, then do it. But do it explicitly -- say it to my face. Tell me, and your queer sons and daughters, to our faces that our biology means that we are not meant to live the full life of a Jew. Tell me, if you can. And most importantly, by far most importantly, tell to kids as soon as they are tested and found to be gay. Tell them when they’re young: the Jewish people has no place for you. Because otherwise they are going to be maimed by your system.
I have tried to show that there are doubts, ambiguities, and uncertainties at every step along the interpretive path, in the texts and in in the 1992 tshuvah. I have invited us to understand there is no way God wants this for God’s children, and to then figure out what the texts mean instead. Gay people are not like kohanim, who may not get to participate in an extra practice on top of their ordinary humanity; I am a person whose very humanity is denied by your position. This is not like hungry people, who may one day be fed; I am to be hungry for life, deformed, broken.
And there are thousands of people like me. The hatred manifested l’maaseh is not so separate from the halacha decided iyyunit by Rabbi Roth, or the dogma of the church, or the hadith. I don’t think most rabbis would ever think that it is. We know that the substantive halacha is informed by the pain and suffering it causes. Just as women only gained the power to convey their pain at exclusion within the last forty years, so gays and lesbians are only now able to give voice to theirs. Now we know, in a way we did not twelve years ago, and did not one thousand years ago, that gay people can be loving, that gay people are indeed born that way, and that gay people are being psychologically trampled upon. Will you act on this new knowledge, in light of the constructive ambiguities of our texts? And if not, why not – really, why not?
Either God creates gay people only to repress and distort their most
basic human natures, or we have our reasoning wrong. Everything I
know about God, from experience and the tradition of Torah, tells me it
must be the latter.
Ahavat olam: Speech given at the Jewish Theological Seminary of America on Conservative Judaism and sexual orientation. The speech focuses on my own suffering in the closet, and argues that the Jewish God could not possibly create gay people only to subject them to the repression of the closet.
Nehirim: A Spiritual Initiative for GLBT Jews: Organization I direct which is dedicated to creating an authentically Jewish, authentically queer spirituality.
Thirteen principles of queering Jewish theology: Work in progress addressing what questions a queer Jewish theology should ask, based on Maimonides' thirteen principles of the faith.
Da'at: Essay on the homoerotics of learning, teaching, and knowledge. To be published in August, 2004, in Metsch: On Being Queer and Jewish.
about jay michaelson
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