Thursday, December 28, 2006

Homosexuality in halacha III: The Biblical text

All teshuvot referred to in the following posts on this subject will either be linked to from these posts or have previously been linked on my blog. While I may only reference names of first authors, this is being used as shorthand for the full author list. Page numbers refer to the CJLS-posted PDF versions.

The well-known Biblical sources for the prohibitions associated with homosexual relations are ‏וְאֶ֨ת־זָכָ֔ר לֹ֥א תִשְׁכַּ֖ב מִשְׁכְּבֵ֣י אִשָּׁ֑ה תּוֹעֵבָ֖ה הִֽוא "And [with] a man, do not sleep the way [you do with] a woman, it is an abhorrence," (Leviticus 18:22) and ‏וְאִ֗ישׁ אֲשֶׁ֨ר יִשְׁכַּ֤ב אֶת־זָכָר֙ מִשְׁכְּבֵ֣י אִשָּׁ֔ה תּוֹעֵבָ֥ה עָשׂ֖וּ שְׁנֵיהֶ֑ם מ֥וֹת יוּמָ֖תוּ דְּמֵיהֶ֥ם בָּֽם "And a man who sleeps with a man as [a man does] with a woman, both have committed an abhorrent act, they shall certainly be put to death, the bloodguilt is theirs" (Leviticus 20:13). The former comes in the context of a long list of sexual prohibitions and the latter comes in a similar list that adds penalties for the offenders.

It is clear from the language that the Biblical author had zero tolerance for homosexual sex. Attempts to read leniency directly into the text are bound to fail. One such attempt is made by Geller et al (pp9-10). First, they reject others' attempts to limit the context to exploitative or coercive sex as “unconvincing”. Then, they present their own theory that attempts to limit the context to sexual acts performed outside of a sanctified setting (eg, bestiality, homosexuality, incest). They bring in another theory attributed to Jacob Milgrom, that claims that the primary reason for the proscription of the acts is that they involve destruction of seed in ways that lack procreative potential. They conclude (based on a Talmudic interpretation) that the Torah really intended to teach that gay sex is real sex and is thus required to be performed in a sanctified context, for which there is none available. Therefore, because two men cannot sanctify their relationship through marriage, male-male intercourse is thoroughly prohibited. I don't understand the connection between the Geller theory and Milgrom's; they position in their paper as if Milgrom's provides theirs with support, but it seems to me that it does not.

There are problems with both theories. Among the prohibitions in the Holiness code is ‏וְאֶל־אִשָּׁ֖ה בְּנִדַּ֣ת טֻמְאָתָ֑הּ לֹ֣א תִקְרַ֔ב לְגַלּ֖וֹת עֶרְוָתָֽהּ “And do not approach a woman in the midst of her menstrual impurity to uncover her nakedness”(Lev. 20:19). That verse is the source of the niddah prohibitions which are still in force today. Niddah impurity occurs in the normal process of sanctified heterosexual marriage. Sex during the niddah period is more probably nonprocreative (although, if you include all the additional Rabbinically-ordained abstention time, niddah-observance could lead to the phenomenon of Orthodox infertility, that is prevent procreation). It certainly occurs by the same physical mechanism and in the same social context as procreative sex. Whether the biology was known to the Biblical author is questionable. Either way, these explanations are no more convincing than the ones the same authors rejected.

If any leniency at all can be found in the text itself, it would be found with the reason given by the Torah for the prohibitions. This is stated in (Lev 18:3):
‏כְּמַעֲשֵׂ֧ה אֶֽרֶץ־מִצְרַ֛יִם אֲשֶׁ֥ר יְשַׁבְתֶּם־בָּ֖הּ לֹ֣א תַעֲשׂ֑וּ וּכְמַעֲשֵׂ֣ה אֶֽרֶץ־כְּנַ֡עַן אֲשֶׁ֣ר אֲנִי֩ מֵבִ֨יא אֶתְכֶ֥ם שָׁ֙מָּה֙ לֹ֣א תַעֲשׂ֔וּ וּבְחֻקֹּתֵיהֶ֖ם לֹ֥א תֵלֵֽכוּ "Do not do the acts of the Land of Egypt where you dwelt; and do not do the acts of the Land of Canaan where I am bringing you; and do not follow their established practices."
and repeated at the end of the chapter (18:30):
‏וּשְׁמַרְתֶּ֣ם אֶת־מִשְׁמַרְתִּ֗י לְבִלְתִּ֨י עֲשׂ֜וֹת מֵחֻקּ֤וֹת הַתּֽוֹעֵבֹת֙ אֲשֶׁ֣ר נַעֲשׂ֣וּ לִפְנֵיכֶ֔ם וְלֹ֥א תִֽטַּמְּא֖וּ בָּהֶ֑ם אֲנִ֖י יְהוָ֥ה אֱלֹהֵיכֶֽם And you shall observe My laws to avoid all of the abhorrent practices that are done before you; and do not become impure by them. I am YHVH your God."
On the one hand, this can be read as a blanket prohibition of all the acts described. On the other, it can be read as a prohibition only if they are like the acts of the Egyptians and Canaanites. However, any interpretation of the verses in this light would have to be well-supported by the historical evidence (of which there is little or none) and it would also have to encompass all of the prohibited acts listed. The argument from the source of the commandment is therefore difficult or impossible to make.

Contemporary Judaism (of all denominations), however, is not a Biblically fundamentalist religion. As described in an earlier post, practical halacha is a combination of biblical and rabbinic law, and both aspects are rabbinically determined. In the grand scheme of halacha, the interpretive rabbinic statements make a much larger impression.

There are two potentially unclear phrases in the Leviticus verses. One is משכבי אשה (“as [one] sleeps with a woman”) and the other is תועבה (“abhorrence”, “abomination”, or the like). All the teshuvot on the table dealt with תועבה as an attributed —that is, not absolute— quality of abhorrence. The most complete analysis was written by Roth for his 1992 work. That analysis was, in fact, more necessary for a negative answer than for a positive one. The Biblical assignment of homosexual sex as an abhorrence is a potential source for civil discrimination against homosexuals. If the assignment is merely attributed by the Torah for the sake of halacha, it is only valid in the halachic system, and Jews are permitted to push for advancing gay's civil rights in the secular sphere. This idea alone would be considered radical in some Orthodox circles. The differences between them are brought forward in the interpretation of exactly what acts משכבי אשה comprises. The definition, which cannot be found in the Biblical text, defines what the practical halacha considers to be Biblically prohibited. Any remaining prohibitions known to be “on the books” are rabbinic in nature, and potentially more adjustable.

The interpretation and limitation of these two words are, in my opinion, the most important hurdle for the permission granted by Dorff et al to cross. Firstly, their own internal logic requires that they be right about what is Biblically and rabbinically forbidden. Secondly, even if their argument about the methodology for overturning the rabbinic prohibitions is incorrect, if their methodology on the Biblical prohibitions is right, room is still left for others to fill in the missing piece without too much (social) damage to the very people they are trying to help. After all, once a permission of such importance to individuals has been granted and used, it is nearly impossible to rescind.

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Wednesday, December 13, 2006

Final CJLS teshuva released [updated]

The last of the approved CJLS homosexuality teshuvot has been released. It is available (once again, in MS Word format :-( ) at this link. All the teshuvot (approved and not) are available from one place at the Rabbinical Assembly website.

This final release will give us all the ability to determine for ourselves whether the (approved) Levy teshuva is totally off the wall.

[UPDATE: All the teshuvot are now in PDF format:

This should correct the strange interpretation of right-to-left letter ordering that showed up in some versions of MS Word in the previous copies of the documents.]

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Tuesday, December 12, 2006

Additional delay expected

Now that Joel Roth's new paper has been released, I expect there to be an additional delay in my response to the Dorff-Nevins-Reisner teshuva. Roth's 55 page document (in addition to his previous 63 page document) directly addresses the arguments in Dorff et al (and some of the other teshuvot that were not accepted). A compare-contrast of the use and interpretation of sources would be a worthwhile exercise.

I expect that my first substantive post will be about the role of science in these teshuvot.

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Monday, December 11, 2006

More papers released

And they are...

Joel Roth's "Homosexuality Revisited". Passed.
Myron Geller, Robert Fine and David Fine's "The Halakhah of Same-Sex Relations in a New Context" (labeled as a "dissent," presumably, to Roth or Levy). Declared a takkanah because it called for sweeping changes. Failed at a vote. As a dissenting opinion, it is not considered an official paper of the CJLS.
Loel Weiss's "A Concurring Opinion to Levy". Apparently, not voted on. As a concurring opinion, it is not an official opinion of the CJLS.
From Weiss's paper, we now know the title of Levy's teshuva: "Same-Sex Attraction and Halakhah." It is the last remaining official position that is not available to the public, and the one that has caused the most confusion as to its content.

(via Canonist)

Regrettably, they're all in (non-free) MS Word format. They open up correctly in

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Sunday, December 10, 2006

Brief interlude: Another paper released

Gordon Tucker's essay/teshuva is now on his shul's website.* This paper got 7 votes in the CJLS. Had it been an ordinary teshuva it would have been declared a legitimate followable opinion in the Conservative movement. Because it called for very sweeping changes, it was declared a takkanah (decree). I've seen and heard a number of different numbers thrown around for how many votes it would have required to pass, ranging from a true majority to unanimity. Either way, it did not pass.

*It still has the "DRAFT -- NOT FOR CIRCULATION OR DISTIBUTION" warning in big letters on the top, but, he seems to have put it up himself and it's being circulated through a number of email lists. If I find that it was not really intended to be released, I'll remove the link.

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Homosexuality in halacha, post II: Biblical and Rabbinic law

Within the halachic system, there are two possible sources of law. These are Biblical law and Rabbinic law. Within the Conservative understanding, both are considered equally binding. The excuse “it's just Rabbinic anyway” has no meaning. Introducing this distinction, however, is one place where the system becomes really complicated. The reason is that a law being written in the Torah does not necessarily make its literal word a "Biblical law" and a law's specifics not being found anywhere in the Bible does not make them "Rabbinic Law." The distinction itself is Rabbinic in origin! The forbidden manners of work on Shabbat is one example where this concept can be made abundantly clear. The Torah explicitly forbids “creative work” (a loose translation of “מלאכה”) on the Sabbath. Few of what modern Jews recognize as the “39 categories” are directly mentioned in the Torah as forbidden. And, some acts which are directly mentioned as forbidden are not contained in the 39 categories. The categories were derived (or, better, “derived”) from the Torah. Other activities were forbidden by the authority of the Rabbis in order to prevent the transgression of the Biblical laws.

The distinction between Biblical and Rabbinic law does have some practical implications. The first is that, as a general principle, one should rule stringently in an indeterminate case of a transgression of Biblical law, and one should rule leniently in an indeterminate case of a transgression of Rabbinic law. Another distinction is that while both are binding, the "legislative process" of interpretation proceeds differently. Overturning Biblical law (within the confines of the system) is difficult. Overturning or changing Rabbinic law may involve showing that it no longer provides any protection against transgression of a Biblical law, or that its stated social purpose is no longer valid. By the nature of the system, it is far easier to add new Rabbinic prohibitions than to remove old prohibitions, whether they be Biblical or Rabbinic. As a very loose analogy to secular law, Biblical law resembles a written constitution, and Rabbinic law resembles ordinary legislation. While this analogy holds to some extent for Rabbinic law decided at the time of the Talmud, contemporary Rabbinic law more resembles case law than actual legislation.

There are two processes of halachic decision-making available to contemporary rabbinic bodies. The first is the takkanah, or decree, where a Rabbinic authority makes declaration of new law that becomes binding on the community that accepts that authority (as far as I can tell, this usually a means adding a new prohibition, not removing one). The second process is responsa. Under this process, a questioner asks a rabbi or rabbinic authority for a decision. A teshuva (literally, answer) is a clarification of the halacha under the particular circumstance that is asked. The "clarification" effectively adds new binding case law.

Because Rabbinic law is considered more malleable, one way the Rabbis approach halacha is to begin with a known Biblical law, limit its scope, then legislate the remainder Rabbinically. A classical example of this process is the theory underlying the eruv that allows Jews to carry otherwise-Sabbath-permitted objects outside on Shabbat. Carrying outside in the public domain is considered a transgression of Biblical law, which cannot be undone through Rabbinic intercession. The solution to the problem, one that is nearly universally accepted today, was to define a limited scope of the Biblical prohibition (effectively, removing the possibility that one can transgress the Biblical prohibition), regulate the remainder of Shabbat carrying activities under Rabbinic law, and provide an exception to the Rabbinic prohibition, namely, the eruv.

The previous discussion is relevant because there is clearly a Biblical prohibition related to homosexual relations. Our teshuvot -- whether permissive or not permissive -- have to address the nature of this prohibition. The teshuvot purport to be working within the system of halacha. Therefore, they must limit themselves to providing an answer within the boundaries of their authority. Should a question be asked, and there is no opposition between halachic principles, the decision is clear. No responsum can make pork kosher. It is in this context that I set out to read the Dorff-Nevins-Reisner teshuva.

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Homosexuality in halacha, post I: secular context (with clarification)

There are a number of important differences between secular and religious law that impact issues of the rights of homosexuals. Perhaps the first is that the language of "civil rights" is primary in secular law, and mostly irrelevant in halacha. The basis of secular law in a democracy is that there is a necessity for government, but its powers are limited through a social contract with the governed. The government's powers are limited by the people's rights. The basis of adherence to Jewish religious law is traditional. Whether the initial origin of the law was Divine, Divinely-inspired or entirely human is irrelevant to this discussion. The language of halacha is that of positive and negative obligations. The specific decision related to positive obligations is whether a certain act is merely permitted or required. The specific decision related to negative obligations is whether the act is permitted or forbidden. An important point is that adherence to halacha is, for practical purposes, entirely voluntary. This is especially true within the Conservative Movement, where strict adherence is the exception, rather than the norm. Unlike in Chareidi communities, practicially, one may still function as a member of a Conservative community and forego most private practice.
Legislation of private, consensual sexual activity is anathema to secular democracy. It is well within the domain of halacha. Within the system of halacha, heterosexuals, too, have limits placed on their private sexuality. Sexual intercourse is limited to the context of marriage. Even within marriage, the laws of family purity forbid sexual relations during certain times, and sexual activity is forbidden on Yom Kippur and until midday on the Ninth of Av clarified.
The differences between secular and Judaic law are emphasized in R. Joel Roth's 1992 teshuva. In the postscript to his 1992 teshuva, he wrote:

The United States legal system, however, is not a religious legal system. It behooves us, therefore, to reflect briefly on the practical consequences of the difference bwteen a religious and a secular legal system vis-a-vis the issue of homosexuality.... It is far harder to argue that those same reasons [for forbidding homosexual relations] are of legitimate concern to a secular legal system. Indeed, one would be very hard pressed to defend that claim at all. . . . I am unable to offer any cogent argument to demonstrate why the private sexual acts of consenting adults should present any danger or threat to the legitimate interests of the state itself or to its citizens, under common circumstances. Therefore, I can see no justification for civil legislation proscribing such acts....
There is no inconsistency whatsoever in making the halakhic claims made in this paper, on the one hand, and asserting absolute opposition to any infringement of the civil rights of homosexuals on the other. (emph added)

So, even if a Conservative Jew accepts that all homosexual activity is forbidden by halacha, that same Jew, need not be homophobic. In fact, he may actively support gay and lesbian civil rights with a clear religious conscience. Given the history of the Jewish people as a minority persecuted at the hands of a majority for religious reasons, that permission should even be seen by the Jewish community as a cultural obligation.

clarified Even according to the most lenient Conservative position of Theodore Friedman. All the more so for the traditional and more prevalent custom [also affirmed by David Golinkin] which holds that the Ninth of Av prohibitions continue to last all day. Thanks to Mar Gavriel for pointing out that this statement required clarification.

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Friday, December 08, 2006

Dorff-Nevins-Reisner teshuva online

Rabbi Nevins posted the center-permissive responsum on his website. I intend to write my own analysis of it, but, it's quite long and I haven't read it yet.

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Thursday, December 07, 2006

The day after the CJLS decision

Unless you've been living in a cave, you've probably heard about the CJLS's approval of three contradictory responsa on the issue of the position of gays and lesbians in the Jewish community. I would wonder if the press release qualifies as one of the most successful press releases ever in terms of fast promulgation.

Immediate analysis (and reporting) of the decision and its fallout (notably, the resignations of four CJLS members) may be found elsewhere. I intend to reserve most comment in detail until the final text of the approved teshuvot is released to the public. It's a bit hard to comment when one does not know the content of what he's commenting about. When they are released, I might do an analysis of their arguments.

From the early indications, it seems like the CJLS did the right thing for two out of the three documents. Approving contradictory statements (Roth's and Dorff's) leaves a pluralistic approach open. From what I've read, one of the texts advocates the scientifically unsound "restorative therapy" approach (I haven't read the text myself, take what I say for the nothing it's worth).

UPDATE: R. Nevins, who voted against Levy's responsum, called the statement that it advocates "restorative therapy" a "distortion." If so, it was distorted by the CJLS's own press office. Openness can clear this up. Hint, hint, CJLS...

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Sunday, December 03, 2006

The scourge of email forwards

What is it about email that turns off the critical thinking skills of people with college degrees who are generally capable of simple analysis?

If a friend told you that his friend told him that his friend told him that ... his friend told him that a virus was going to wipe out humanity tomorrow, you probably wouldn't go out in the street shouting “the end is near”. And yet, when such dire warnings come over email (although usually in the form of “beware the virus Tim that will cause your computer to explode into pixie dust”), they get passed on without question.

Perhaps, the forwarding tendency could be understood when email was a young technology for the general population. Then, the simple novelty of forwarding text to a hundred AOL accounts might have explained it. But, even over a decade later, when email is ubiquitous and there isn't an inbox that hasn't been hit by spam, some people can't stop forwarding. Some of the forwards from that bygone decade are still being passed around as breaking news. And, they're still being forwarded. After all, it says in it that it will happen “next Monday.”

And, now, here's where the small amount of thinking comes in. There's are search engines out there. One of the popular ones is called Google. It takes a few seconds to type a few key words from the email forward into this search engine, and a fraction of a second for the results to come back to you. It takes less than a minute to skim a few results to see if the claim is true. And, in that minute, you can spare your friends a bit of time, and a bit of anxiety over whatever the email forward is warning about.

As is, I've only received one email warning that had any semblance of truth to it. It was about one of the Windows worms (though I can't remember which one). Of course, it had the doomsday scenario written in it, and never bothered mentioning that it only affected Windows. The forwarder (and the original author) never considered that I might be using GNU/Linux or a Mac.

You can be part of the solution. Just take the anti-forwarding pledge:

I pledge not to forward email without first checking whether the claim is true.

Or, don't take the pledge. Forward this post to ten people. If you do, a Nigerian will contact you with information about how you can help a ruthless dictator launder a billion dollars. He promises to give you a cut.

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