Sunday, February 11, 2007

Homosexuality in halacha V: Human Dignity

For the purposes of this post, I will assume that we can accept the Dorff, Nevins, Reisner teshuva's conclusion that among all homosexual activity, only male-on-male anal intercourse is forbidden from the Torah, and the remainder is forbidden rabbinically.*

Please note that we are discussing here a legal, not a colloquial, definition of “dignity.” An answer that says that the principle does not apply to the case of homosexuality is not equivalent to saying that homosexuals are somehow undignified or not due the honor that is due to any human being.

Dorff et al begin their argument on the concept of “feasibility” — that the halacha does not demand what it knows to be impossible. Upon first reading this argument, I equated it in my mind with Rabbi Simchah Roth's final argument in his teshuva that homosexuals are אנוסים (compelled in their actions). The Dorff teshuva never makes the equation to that legal language. It uses more fuzzy broad-based logic to argue that the Torah does not demand the impossible (pp13-14). Both arguments are similar in that both documents use this particular argument towards the end of increased permissiveness, which looks to me like the wrong conclusion. A more authentic use might be to use these types of arguments to absolve homosexuals of the positive obligations of heterosexual marriage. Another potential use would be to absolve them of legal culpability for wrongdoing. Because the halacha is not a civil code, removal of such culpability has no practical effect. It also may be counterproductive to the final intent of the argument. It appears to me that Dorff et al intend to make halacha accepting of homosexuals in an ideal way (לכתכילה), not merely as compelled sinners. It does not appear to me that these arguments help overturn negative commandments in anything more than a single-instance and/or non-ideal case (בדיעבד).

The primary halachic argument that Dorff et al advance, and the one from which they derived the title of their work is that כבוד הבריות (human dignity, dignity due to all creations) overrides the Rabbinic negative commandments, and would thus allow homosexuals full participation in the community.

The principle, as stated in the Talmud (see footnote 56 for multiple references), is גדול כבוד הבריות שדוחה לא תעשה שבתורה, “[so] great is human dignity that it sets aside a negative commandment in the Torah.” All agree that the Talmud limits its own statement to Rabbinic commandments. That is why one must agree with this teshuva's interpretation of the the distinction between Biblical and Rabbinic prohibitions that was summarized earlier in order for this particular argument to hold.

The analysis then turns to practical cases where the principle is used:
  1. BT Berachot 19b: A sage must strip off a garment that he learns contains a prohibited combination (shatnez), even if he is in public. In this case, Divine dignity, which is determined by observance of the commandments, overrides human dignity and the dignity due to the sage.
  2. A kohen may accompany a mourner through a field that was rendered impure through the possible presence of human remains. Had the field been an actual cemetery, this act would be Biblically forbidden. The prohibition of a kohen's passage through the uncertain field is Rabbinic, and is overridden by the dignity due to the mourner.
  3. Similarly, the rabbis, including kohanim would go over actual coffins in order to greet a king of Israel. The dignity due to the king overrides what turns out to be a rabbinic commandment (because the coffins themselves were constructed to limit the spread of impure cooties).
  4. Because leading an animal would be beneath his dignity, a Torah scholar does not have to return a lost animal he found, in contravention to a positive Biblical commandment.
  5. A person may carry smooth stones (an equivalent to toilet paper) up to a roof -based bathroom on Shabbat in order to clean himself, in deference to human dignity. Such carrying would violate a negative Rabbinic commandment.
  6. A dead body may be removed from a house to an intermediate area on Shabbat. Such carrying would violate a negative Rabbinic commandment.
  7. One should bury an abandoned body in preference to reading the Megilah at the proper time, because of the dignity due to the body (this is indeed referred to in B.T. Megilah 3b as כבוד הבריות, the dignity due to creations, and not the more common כבוד המת, the dignity due to the dead).

The opposing arguments are (Roth 2006 p21-26):
  1. Person A may violate a negative rabbinic commandment on behalf of the dignity of person B, but not on behalf of his own dignity.
  2. In order to qualify as indignity, the undignified state must occur in public.
  3. The dignity exception only applies to violations that occur in single-instances, and is an emergency measure.

In fact, most of the cited cases do follow one of these patterns, and Dorff et al acknowledge that fact (p23). R. Louis Ginzberg's modern definition that they cite of כבוד הבריות, in fact, comes somewhere between Roth's and their own:

שכבוד הבריות משמעו דבר שאדם מונע עצמו ממנו כדי שלא יתבזה בין בני אדם

The meaning of [the exception due to] human dignity is that a man withholds himself from something so that he will not be humiliated among people. (Dorff translation, p23)

This definition seems to allow for someone to make an exception on his own behalf, but also indicates that the indignity must occur in public.

It appears to me that the only case of those provided where an individual is clearly violating a negative Rabbinic commandment on behalf of his own dignity is that of the carrying of cleaning stones on Shabbat. Roth's first and second counterarguments are applied to this case by asserting that the prevented indignity is the smell of feces among others. The dignity of the others is being protected, and the indignity occurs in public. This line of thought can be negated by pointing out that there is no mention of others in the private domain. One could easily imagine that the man be advised not to violate Shabbat and not to appear in public, or that the exception be limited to a multi-occupant house! Unfortunately, Dorff et al seemingly contradict themselves on the bottom of p23: “Dignity is a social phenomenon... for a person to smell filthy in isolation is uncomfortable, but it becomes humiliating only when others smell him.” Roth's third counterargument that it is only a single-instance emergency measure is negated by the fact that this exception is codified in the Shulchan Aruch as a permanent exception.**

In defense of the argument that this ruling applies to homosexuals, Dorff et al assert that homosexuals' “social status is one of humiliation” (p22). One thing in common between all the precedent proof-cases provided both by Dorff et al and by Roth (who includes additional cases in his refutation) is that it is perfectly clear that a specific commandment is being violated by one person on behalf of the dignity of a specific person. The major legal issue with the exception proposed by Dorff et al is that the permission is highly nonspecific. It is never clear who's dignity is being protected in the particular violation of any rabbinic commandment. The “hard” legal principle from which they tried to derive a hard legal argument devolved into a “soft” principle, to use their own terminology (p17).

The teshuva also suffers from a philosophical flaw that is inherent to other permissive Conservative teshuvot as well. Namely, it speaks the language of permission, but not of obligation.*** In this case, the teshuva concludes that all rabbinic prohibitions relating to homosexuality are annulled because of the principle of “so great is human dignity...”. It also emphasizes Jewish values such as fidelity/monogamy, (p27) but it does not translate these values into part of the proposed solution. It intentionally leaves out discussion of the nature of “commitment ceremonies”, allowing them, but effectively making them optional (p25). It appears that the teshuva leaves fewer obligations with regards to a homosexual relationship than a heterosexual one!

Unlike R. Gordon Tucker's teshuva (for example), the work of Rabbis Dorff, Nevins, and Reisner is intended to be a paper for an audience willing to accept classical halachic reasoning. Because it relies on essentially weak or incomplete argumentation, it would tend to fail to convince that kind of audience. As far as I have read, though, it is the most plausible attempt to create a permissive regime for homosexuality within the context of halacha. An unfortunate side-effect of its acceptance by the CJLS may be that it will be considered the final word on the subject, and a more halachically honest approach will never even be proposed. As a side note, the Masorti movement, the Israeli equivalent of the Conservative movement, which retains its own decision-making apparatus, has stated that it will not be bound by the American decision. It is possible, therefore, that these issues will be ironed out in the Israeli/overseas process.

* In my previous post, I decided not to discuss the issue of lesbianism. Briefly, Roth (1992,pp5-6;2006,pp18-19) claims that it's Biblically prohibited, quoting from Sifra, which derives the prohibition from the general introductory statement of Lev. 18:3. Both Roth and Dorff et al agree that any punishment for lesbianism is rabbinic. Should we accept Dorff's argument about the Biblical prohibitions with regard to men, then, it would only seem logical to accept their arguments with respect to women. Otherwise, lesbianism, which does not involve any intercourse and is not mentioned specifically in the Torah, would be under a more stringent ruling than male homosexuality, which involves intercourse that is forbidden by the Torah. It is not clear from the Sifra's text itself whether it actually intended to derive a new Biblical prohibition or make a midrashic comment, or, for that matter, what acts precisely would be considered Biblically prohibited.

** Dorff et al attempt to provide a grammatical argument from the Talmudic text of the case of the Israelite king to prove that the human dignity exception is continuous, and not an emergency measure. The argument is not that convincing.

*** We may contrast this teshuva to those that permitted egalitarianism, which based their conclusions on two theories. According to one theory (Roth), women must accept upon themselves obligations before they could fulfil them for others. According to the other theory (Golinkin, eg), women are already, in fact, equally obligated.

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