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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Comments:
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.

I have no clue what this sentence means, especially the סֵיפָא / apodosis ("room is still left....").

What is this "room" that is left?
Who are these "others"?
What is this "missing piece"?
What is the "social damage"?
 
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If Dorff/Nevins/Reisner are right about the nature of the Biblical prohibitions, but wrong about how to set aside the Rabbinic:

What is this "room" that is left?

To find another way that makes more logical sense.

Who are these "others"?

Other rabbis.

What is this "missing piece"?

of the argument

What is the "social damage"?

If a permission has already been granted for homosexual relationships/commitments based on faulty logic, then, simply correcting the error (that is, simply revoking the permission) would cause a good deal of political damage and damage to anyone who availed themselves of the permission.
 
If a permission has already been granted for homosexual relationships/commitments based on faulty logic, then, simply correcting the error (that is, simply revoking the permission) would cause a good deal of political damage and damage to anyone who availed themselves of the permission.

so isn't the way the CJLS does its things, where one can even get a small minority vote and be considered a legitimate path to follow fundamentally broken?
 
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