Sunday, December 10, 2006

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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Comments:
Has Joel Roth himself ever publicly supported civil same-sex marriage (etc.), or is he just saying that one would be permitted to if one felt that way?
 
I am not aware of any public statements of support for civil marriage. Whether his 1992 teshuva implies support depends on whether it is included in his definition of "full equality."

The 1992 document was written before gay marriage or even civil unions were possibilities in any US state. The 2006 document simply referred back to the 1992 one.

There is definite evidence of his continuing public opposition to discriminatory laws (eg, anti-sodomy laws).
 
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