Wednesday, January 10, 2007
Homosexuality in halacha IV: The Biblical Prohibition
By now, I hope that I've shown that the Biblical prohibition in a halachic sense is not defined by the Biblical text itself. Now, I would like to examine the early rabbinic (primarily Talmudic) texts used by Dorff et al (2006), and Roth's responses (2006), interspersed with my own analysis.
Most of the discussion of Talmudic sources in Roth's 1992 teshuva focused on whether the rabbis of the Talmud could envision (and thus could have knowingly prohibited) the modern, monogamous, loving homosexual relationship. These sources, while they have halachic import, do more to establish social context than to determine the nature of the Biblical prohibition as a technical issue.
Dorff et al acknowledge that some form of homosexual behavior is not only Biblically prohibited, but is in the category of גילוי עריות (gilui arayot, illicit “uncoverings of nakedness”). Transgressing these prohibitions is considered so serious that one is halachically expected to die instead of submitting to a forced transgression of them.
Our analysis could begin in many places, but, perhaps the most appropriate is at BT Sanhedrin 55a:
So, the Talmud defines the Biblically forbidden homosexual relations as whatever is legally included in the two verses in Leviticus. Based on their halachic analysis, Dorff et al interpret that to mean “anal intercourse”, and based on analysis of many of the same sources, Roth interprets it to mean all penetrative contact between men. In its discussion of the verses in question, the Talmud addresses three key points. The first is that the term “lyings of a woman” is not clear. The second is that it is written in plural. The third is that it is in a Biblical context dealing with other manners of forbidden sexual relations, such as between male and female relatives, between people and animals, and between men and menstruant women.
The plural “lyings of a woman” is addressed with the same Talmudic statement in three places, BT Sanhedrin 54a, BT Yevamot 56b, and Sifra Kedoshim 9:14 (92b):
Rashi defines the two “lyings” as follows (emphasis added):
The primary dispute here is the definition of “the unusual way.” Dorff et al argue that it means anal sex specifically, while Roth argues that it includes all nonvaginal penetrative intercourse. As a side note, this last Rashi undermines Dorff et al's note 29, where they write: “We are not aware of any rabbinic text which employs the term biah shelo kedarkah to describe homosexual sex.”
That sex the “unusual way” is sufficient to incur Biblical liability is made somewhat clearer from an unrelated discussion in Horayot 4a (brought up by Roth but not addressed in Dorff). The case the Talmud is discussing involves a sanhedrin (court) that makes an incorrect ruling. Ordinarily, this would make the court liable for having to bring a sacrifice, but anyone who followed the incorrect ruling would not be liable. The exception (mishna, Horayot 3b) is when the court annuls an entire Biblical law, for example, it removes the niddah prohibitions, the Sabbath, or the prohibitions against praying to foreign gods from the Torah in their entirety. In that case, the court is not liable to bring the sacrifice, and anyone who followed the ruling is liable for violating the “overturned” prohibition. The reasoning is that it should have been obvious (even to a Biblical literalist, such as a Sadducee) that the ruling was wrong, because it so obviously overreached the authority of the court.* The mishna also presents a borderline case, in which the court annuls only a specific portion of a Biblical law. For example, it states that the niddah prohibitions are in force, but that a woman may consider herself pure (and thus have sexual relations with her husband) while she counts the days until her time of immersion; or that the Shabbat laws are in full force, except one may carry between a private domain and a public domain; or that the prohibitions against foreign worship are in full force, but one who merely bows before other gods is not liable. In these cases, when the court finds that it ruled incorrectly, it is liable for a sacrifice. When the Talmud discusses the first of these cases, it touches on issues relevant to our discussion. The Talmud is in the process of suggesting and rejecting what the court could have said in this case that was wrong, but not “obviously” Biblically prohibited. One of the suggestions is:
The conclusion is that it should be obvious that the phrase “the lyings of a woman” implies that both types of intercourse, the “usual” and “unusual” ways are Biblically forbidden.
The connection to the Biblical context is made in BT Yevamot 54b:
The Talmud Yerushalmi, Kiddushin 1,1 (2a), is even more specific:
This passage defines the Biblical injunction against the “lyings of a woman” with a man as the equivalent of what is forbidden with a menstruant woman. As far as I can tell, this source is not addressed in Dorff et al.
So, now, we know that העראה (I've been translating it as “initiation of sexual contact”) of ביאה שלא כדרכה (“sex the unusual way”) is sufficient to incur a Biblical penalty**. Both of these remain undefined terms.
The Talmud defines העראה (initiation) in a discussion in Yevamot 55b as “הכנסת עטרה”, the entry of the crown of the penis. Both Roth (pp8-9) and Dorff (note 25) agree on this point. Their primary disagreement is into which orifice(s) the penis must be inserted in order to incur a Biblical penalty.
One Talmudic case considered strong proof by Dorff et al that “the unusual way” only refers to anal intercourse is that of the androginus, a human with two sets of genitalia. (Simplifying, ) The halachic definition of a male is one with a penis, so, the androginus is male according to halacha, and, thus can be liable for relations with another man. From BT Yevamot 83b:
The ultimate ruling with regard to the androginus is unimportant for our purposes. Dorff et al would like “two places” to mean “two and only two”. There are a number of linguistic problems with the interpretation of this passage. One is pointed out by Roth (p12). “Femaleness” is universally equated with a vagina. The question then is the meaning of “maleness” in this context. Dorff et al equate it with an anus, following the Ritv"a (Rabbeinu Yom Tov ben Avraham Asevilli, 1255-1300; Dorff, note 31), who explicitly defines “maleness” as the “behind”. Roth prefers the term I translated as “maleness” to be understood according to its more frequent usage — “penis.” What Dorff's definition loses in linguistic fidelity, it gains in textual symmetry: the text refers to the two places an androginus can be penetrated and thus incur a penalty. The textual symmetry in Roth's definition is that both “maleness” and “femaleness” refer to genitalia. Either way, at least one “place” that is known to that author to result in a Biblical penalty is missing. For Dorff, it's the penis. For Roth, it's the anus (or the mouth, for that matter!). Both would argue based on their own versions of the textual parallelism that it is not expected to be there. This passage is therefore inconclusive.****
Colloquially, “sex the unusual way” likely means any nonvaginal sex. Roth suggests that it means any nonvaginal penetration (for reasons discussed below). However, from the Talmudic sources alone, there is little evidence of its legal definition. It could be specifically anal, or it could be more general. In some places, it could have one meaning, and in others, it could be a specific euphemism. Other sources are introduced by both Roth and Dorff. But, they are similarly inconclusive.
There is later evidence as to the possible meanings of “sex the unnatural way”. Dorff et al suggest that the Rashi on the language used in the rape of Dinah (Gen 34:2) proves that “the unusual way” is painful, and therefore, it must refer to anal sex. Rashi derives this from the midrash Bereshit Rabba chapter 5. Once again, however, this is not absolute proof, since there is no evidence that the term has only one meaning. In that case, Rashi had one of many specific meanings of the “unusual way” in mind when he wrote the commentary on Genesis.
The closest we come to an actual definition is Rashi on Yevamot 34b:
This would seem to support Roth's more general understanding of sex “the unusual way”.
Another cited proof text is the Rashi on Niddah 13b that defines another term, sex דרך אברים, “by way of the limbs”, which the Talmud explicity excludes from the category of “lyings of a woman”. Rashi defines:
Roth's interpretation is that “by way of the limbs” refers to nonpenetrative sex acts, and “the unnatural way” refers to penetrative sex acts. Dorff et al include only anal sex in “the unnatural way”, and the remainder in “by way of the limbs”.
The earliest quoted primary source of an absolutely clear broad legal definition is in an edition of the Shulchan Aruch published in Venice in 1594 (Roth p10). The Ram"a on Even Haezer 25:2 which reads: “And has intercourse with her the usual way or the unusual way, but not by way of the anus, God forbid”. The proof text itself (italicized), which clearly includes non-anal intercourse in “sex the unusual way” is not in our editions of the Ram"a. I don't know whether the Venice 1594 edition is a more or less reliable one than the one we have.
The later commentators and halachists include ever broader definitions of the Biblical prohibition (see Mainmonides, the Shulchan Aruch, Tur, etc. quoted by Roth p13), deriving the prohibition against intercourse from “the lyings of a woman”, and the prohibition against all other sexual activity from Lev. 18:3.
To this point, all that we've determined is that the early sources can be read such that anal intercourse is the only Biblical prohibition. It is a plausible reading, but, truthfully, not that conclusive nor convincing. Roth's understanding is most consistent with the greatest number of halachic texts, including the Talmud and post-Talmudic codes. To this point, the differentiation is all just an academic exercise. Even if the remainder is not Biblically prohibited, it is certainly Rabbinically prohibited. A future post will (hopefully) look at the logic used by Dorff et al to overturn the remaining prohibitions.
Roth provides a number of philosophical objections to defining the Biblical prohibition narrowly. The first, from a halachic perspective, is the principle ספיקא דאורייתא לחומרא, that when there is an uncertainty with regard to application of a Biblical law, we rule stringently. The counterargument would be that this is a cop-out. The uncertainty here is not (yet) in application, it is in whether the law is actually Biblical. To the best of my knowledge, this principle is a guideline for deciding practical applications, not for categorizing. The second objection is essentially a slippery-slope argument. Roth argues that should we decide to limit the Biblical prohibition against homosexuality, there is no reason not to do the same for all the other sexual prohibitions in Lev. 18. However, deciding on the nature of the Biblical prohibition does no such thing automatically. Rabbinic prohibitions still prevent one from making any forms of bestiality or incest halachically legitimate. The ultimate question is whether there is any compelling reason to reconsider the Rabbinic prohibitions. Dorff et al are not suggesting that Rabbinic halacha is nonbinding. On the contrary, much of their case relies on Rabbinic jurisprudence. Roth's third objection is more sociological. He argues there is a difference between what a decisor would say to someone privately and what should be enshrined in law for all to read. But, the fact that this issue has come up as a societal issue rather than as a private issue demands a societal answer.
* A cynic would snicker at the parallels to the issue currently under discussion.
** I want to make absolutely clear here that when a halachist talks about a liability for a Biblical or Rabbinic penalty, it is not equivalent to a statement that the halachist thinks that someone should actually go out and punish another according to that penalty. Penalties are being used to make legal distinctions. Nothing more.
*** The text here is severely corrupted and it's a bit hard to tell which proof-verse is intended.
**** I should point out that even though the language is inconclusive, if you're willing to accept Dorff et al's perfectly reasonable understanding at face value, this passage is pretty much the only one presented that would strongly indicate that the sole definition of “sex the unusual way” is anal sex. (Updated: 1/12/2007)
Many thanks to DW for helping me proofread and copy-edit.
Most of the discussion of Talmudic sources in Roth's 1992 teshuva focused on whether the rabbis of the Talmud could envision (and thus could have knowingly prohibited) the modern, monogamous, loving homosexual relationship. These sources, while they have halachic import, do more to establish social context than to determine the nature of the Biblical prohibition as a technical issue.
Dorff et al acknowledge that some form of homosexual behavior is not only Biblically prohibited, but is in the category of גילוי עריות (gilui arayot, illicit “uncoverings of nakedness”). Transgressing these prohibitions is considered so serious that one is halachically expected to die instead of submitting to a forced transgression of them.
Our analysis could begin in many places, but, perhaps the most appropriate is at BT Sanhedrin 55a:
א"ל רבינא לרבא: המערה בזכור מהו? המערה בזכור "משכבי אשה" כתיב ביה!
Ravina asked Rava: What are the illicit sexual relations concerning a man [and another man]? [Rava answered:] About that it is written: "The lyings of a woman!"
So, the Talmud defines the Biblically forbidden homosexual relations as whatever is legally included in the two verses in Leviticus. Based on their halachic analysis, Dorff et al interpret that to mean “anal intercourse”, and based on analysis of many of the same sources, Roth interprets it to mean all penetrative contact between men. In its discussion of the verses in question, the Talmud addresses three key points. The first is that the term “lyings of a woman” is not clear. The second is that it is written in plural. The third is that it is in a Biblical context dealing with other manners of forbidden sexual relations, such as between male and female relatives, between people and animals, and between men and menstruant women.
The plural “lyings of a woman” is addressed with the same Talmudic statement in three places, BT Sanhedrin 54a, BT Yevamot 56b, and Sifra Kedoshim 9:14 (92b):
“משכבי אשה” מגיד לך הכתוב ששני משכבות באשה. הרי זה בא ללמד ונמצא למד.
“The lyings of a woman” comes to teach us that there are two lyings with a woman. This passage comes to teach one thing, and it also teaches about another.
Rashi defines the two “lyings” as follows (emphasis added):
משכבי אשה - שתי משכבות יש באשה, שוין זה לזה לחייב בכל עריות, כדרכה ושלא כדרכה. הרי זה בא ללמד - על זכר, שחייב אפילו שלא כדרכה. ונמצא למד - למשכב זכור לא איצטריך קרא, דפשיטא לן דכל משכב זכר שלא כדרכו הוא, אלא האי משכבי לאשמועינן אתא דהבא על אשה, בין כדרכה, בין שלא כדרכה חייב.
“‘there are two lyings with a woman’ . . . that are equivalent to each other for legal liability with regards to all illicit sexual relations; the usual way [vaginal intercourse] and the unusual way. ‘This passage comes to teach one thing.’ That a man is liable [for illicit relations] even though they are done the unusual way. ‘and it also teaches us about another.’ For the purposes of homosexual relations, we don't need a Biblical verse, because clearly all relations between men are not performed the usual way. Instead, the verse comes to teach us that a man who has illicit sexual relations with a woman is liable, whether those relations were the usual way or the unusual way.”
The primary dispute here is the definition of “the unusual way.” Dorff et al argue that it means anal sex specifically, while Roth argues that it includes all nonvaginal penetrative intercourse. As a side note, this last Rashi undermines Dorff et al's note 29, where they write: “We are not aware of any rabbinic text which employs the term biah shelo kedarkah to describe homosexual sex.”
That sex the “unusual way” is sufficient to incur Biblical liability is made somewhat clearer from an unrelated discussion in Horayot 4a (brought up by Roth but not addressed in Dorff). The case the Talmud is discussing involves a sanhedrin (court) that makes an incorrect ruling. Ordinarily, this would make the court liable for having to bring a sacrifice, but anyone who followed the incorrect ruling would not be liable. The exception (mishna, Horayot 3b) is when the court annuls an entire Biblical law, for example, it removes the niddah prohibitions, the Sabbath, or the prohibitions against praying to foreign gods from the Torah in their entirety. In that case, the court is not liable to bring the sacrifice, and anyone who followed the ruling is liable for violating the “overturned” prohibition. The reasoning is that it should have been obvious (even to a Biblical literalist, such as a Sadducee) that the ruling was wrong, because it so obviously overreached the authority of the court.* The mishna also presents a borderline case, in which the court annuls only a specific portion of a Biblical law. For example, it states that the niddah prohibitions are in force, but that a woman may consider herself pure (and thus have sexual relations with her husband) while she counts the days until her time of immersion; or that the Shabbat laws are in full force, except one may carry between a private domain and a public domain; or that the prohibitions against foreign worship are in full force, but one who merely bows before other gods is not liable. In these cases, when the court finds that it ruled incorrectly, it is liable for a sacrifice. When the Talmud discusses the first of these cases, it touches on issues relevant to our discussion. The Talmud is in the process of suggesting and rejecting what the court could have said in this case that was wrong, but not “obviously” Biblically prohibited. One of the suggestions is:
דאמרי: כדרכה אסירא, שלא כדרכה שריא, הא כתיב: "משכבי אשה."
[If] they say: the usual way is OK, the unusual way is forbidden, [they are answered: ] It is written: “the lyings of a woman”.
The conclusion is that it should be obvious that the phrase “the lyings of a woman” implies that both types of intercourse, the “usual” and “unusual” ways are Biblically forbidden.
The connection to the Biblical context is made in BT Yevamot 54b:
אמר ר' יונה, ואיתימא רב הונא בריה דרב יהושע: אמר קרא: "כי כל אשר יעשה מכל התועבות האלה ונכרתו הנפשות העושות" הוקשו כל העריות כולן לנדה. מה נדה בהעראה, אף כל בהעראה.
Rav Jonah said, and there are some who attribute it to Rav Huna son of Rav Joshua: The verse says: "All who do any of these abhorrences will have their souls cut off [from among their nation]" (Lev 18:29). All of the illicit sexual acts [listed in Leviticus 18] were connected to niddah. Just as for niddah, initiation of sexual contact [is sufficient for liability], so in all of them, initiation of sexual contact [is sufficient for liability].
The Talmud Yerushalmi, Kiddushin 1,1 (2a), is even more specific:
ר' יוסי בעא: הערייה בזכור מהו? הערייה בבהמה מה היא? וכל העריות לא מן הנידה למדו? זכור מינה, בהמה מינה.
R. Jose asked: What is the forbidden initiation of sexual contact between a man and another man? What is the forbidden initiation of sexual contact between a man and an animal? [He was answered:] Have we not learned about the forbidden sexual relations from the case of the menstruant woman? We learn the case of a man from there, and we learn the case of an animal from there.
This passage defines the Biblical injunction against the “lyings of a woman” with a man as the equivalent of what is forbidden with a menstruant woman. As far as I can tell, this source is not addressed in Dorff et al.
So, now, we know that העראה (I've been translating it as “initiation of sexual contact”) of ביאה שלא כדרכה (“sex the unusual way”) is sufficient to incur a Biblical penalty**. Both of these remain undefined terms.
The Talmud defines העראה (initiation) in a discussion in Yevamot 55b as “הכנסת עטרה”, the entry of the crown of the penis. Both Roth (pp8-9) and Dorff (note 25) agree on this point. Their primary disagreement is into which orifice(s) the penis must be inserted in order to incur a Biblical penalty.
One Talmudic case considered strong proof by Dorff et al that “the unusual way” only refers to anal intercourse is that of the androginus, a human with two sets of genitalia. (Simplifying, ) The halachic definition of a male is one with a penis, so, the androginus is male according to halacha, and, thus can be liable for relations with another man. From BT Yevamot 83b:
אמר רב שמואל בר יהודה א"ר אבא אחוה דר' יהודה בר זבדי אמר רב יהודה אמר רב: אנדרוגינוס חייבין עליו סקילה משתי מקומות. מיתיבי: רבי אליעזר אמר אנדרוגינוס חייבין עליו סקילה כבזכר. בד"א בזכרות שלו, אבל בנקבות שלו, פטור. הוא דאמר כי האי תנא דתניא רבי סימאי אומר: אנדרוגינוס חייבין עליו סקילה משתי מקומות. מ"ט דרבי סימאי? אמר רבא בר המדורי: אסברא לי "ואת זכר לא תשכב משכבי אשה." אי זהו זכר שיש בו שני משכבות? הוי אומר: זה אנדרוגינוס. ורבנן אע"ג דאית ביה שני משכבות "את זכר" כתיב. ורבנן זכר גרידא מנא להו? מ"ואת אשה." באשה שלא כדרכה מנא להו? מ"אשה."
Rav Samuel son of Judah said in the name of Rabbi Aba brother of Rabbi Judah son of Zveidi who said in the name of Rabbi Judah who said in the name of Rav: An androginus is liable for [the Biblical penalty of] stoning [for homosexual relations] from two places. They asked of him [from the mishna]: “Rabbi Eliezer said: An androginus is liable for stoning as a man” — “As a man” means to say “with his maleness” (בזכרות שלו), but in his femaleness (בנקבות שלו), he is not liable!? This tannaitic ruling agrees with another [Beraita]: “Rabbi Simai said: An androginus is liable for stoning from two places.” Why does Rabbi Simai rule this way? Rava son of Hamduri said: Explain to me [the verse, Lev 18:22] “Do not lie with a man the lyings of a woman”. What man has two “lyings”? This is the androginus! The opinion of the [other] rabbis is that even though he has two “lyings”, it is written “And a man” [that is, he is only liable for sex with male parts (Rashi)]. [But] according to the opinion of the rabbis [where the word “a man” is being used to remove the liability from the female part of the androginus], from where do we derive the law [against homosexual relations] in relation to a normal male? From “and to a woman”***. [According to both Rabbi Simai and the other rabbis, ] from where do we derive the law in relation to [illicit sexual relations between a man and woman] that the unusual way [is sufficient to incur a Biblical penalty? (We had thought that it was from the plural form of “lyings”, but this is already being used for different legal derivations -- Rashi)] From “a woman” (most likely referring to Lev. 18:22).
The ultimate ruling with regard to the androginus is unimportant for our purposes. Dorff et al would like “two places” to mean “two and only two”. There are a number of linguistic problems with the interpretation of this passage. One is pointed out by Roth (p12). “Femaleness” is universally equated with a vagina. The question then is the meaning of “maleness” in this context. Dorff et al equate it with an anus, following the Ritv"a (Rabbeinu Yom Tov ben Avraham Asevilli, 1255-1300; Dorff, note 31), who explicitly defines “maleness” as the “behind”. Roth prefers the term I translated as “maleness” to be understood according to its more frequent usage — “penis.” What Dorff's definition loses in linguistic fidelity, it gains in textual symmetry: the text refers to the two places an androginus can be penetrated and thus incur a penalty. The textual symmetry in Roth's definition is that both “maleness” and “femaleness” refer to genitalia. Either way, at least one “place” that is known to that author to result in a Biblical penalty is missing. For Dorff, it's the penis. For Roth, it's the anus (or the mouth, for that matter!). Both would argue based on their own versions of the textual parallelism that it is not expected to be there. This passage is therefore inconclusive.****
Colloquially, “sex the unusual way” likely means any nonvaginal sex. Roth suggests that it means any nonvaginal penetration (for reasons discussed below). However, from the Talmudic sources alone, there is little evidence of its legal definition. It could be specifically anal, or it could be more general. In some places, it could have one meaning, and in others, it could be a specific euphemism. Other sources are introduced by both Roth and Dorff. But, they are similarly inconclusive.
There is later evidence as to the possible meanings of “sex the unnatural way”. Dorff et al suggest that the Rashi on the language used in the rape of Dinah (Gen 34:2) proves that “the unusual way” is painful, and therefore, it must refer to anal sex. Rashi derives this from the midrash Bereshit Rabba chapter 5. Once again, however, this is not absolute proof, since there is no evidence that the term has only one meaning. In that case, Rashi had one of many specific meanings of the “unusual way” in mind when he wrote the commentary on Genesis.
The closest we come to an actual definition is Rashi on Yevamot 34b:
שלא כדרכה והעראה משכבת זרע נפקא - שלא כדרכה אינו מקום זרע העראה לאו שכבת זרע הוא דאין כאן זרע הלכך תרוייהו משכבת זרע מימעטי:
The unusual way and initiation are differentiated [legally] from [the Biblical category of] “intercourse involving seed” - The unusual way [means] ‘not in a place with procreative potential’, and initiation of sexual contact is not [considered intercourse involving seed] because there is no ejaculation. Both are eliminated [from incurring legal liability] wherever [the Torah says] “intercourse involving seed”.
This would seem to support Roth's more general understanding of sex “the unusual way”.
Another cited proof text is the Rashi on Niddah 13b that defines another term, sex דרך אברים, “by way of the limbs”, which the Talmud explicity excludes from the category of “lyings of a woman”. Rashi defines:
דרך אברים - היינו שכבת זרע לבטלה, ואינו משכב זכור דבמשכב זכור כתיב: "משכבי אשה".
[Sex] by way of the limbs -- This [is a sexual act that] wastes seed, but it is not considered [the legal equivalent of] “lying with a man” because all of the cases for “lying with a man” must be included in “the lyings of a woman” (Lev 18:22).
Roth's interpretation is that “by way of the limbs” refers to nonpenetrative sex acts, and “the unnatural way” refers to penetrative sex acts. Dorff et al include only anal sex in “the unnatural way”, and the remainder in “by way of the limbs”.
The earliest quoted primary source of an absolutely clear broad legal definition is in an edition of the Shulchan Aruch published in Venice in 1594 (Roth p10). The Ram"a on Even Haezer 25:2 which reads: “And has intercourse with her the usual way or the unusual way, but not by way of the anus, God forbid”. The proof text itself (italicized), which clearly includes non-anal intercourse in “sex the unusual way” is not in our editions of the Ram"a. I don't know whether the Venice 1594 edition is a more or less reliable one than the one we have.
The later commentators and halachists include ever broader definitions of the Biblical prohibition (see Mainmonides, the Shulchan Aruch, Tur, etc. quoted by Roth p13), deriving the prohibition against intercourse from “the lyings of a woman”, and the prohibition against all other sexual activity from Lev. 18:3.
To this point, all that we've determined is that the early sources can be read such that anal intercourse is the only Biblical prohibition. It is a plausible reading, but, truthfully, not that conclusive nor convincing. Roth's understanding is most consistent with the greatest number of halachic texts, including the Talmud and post-Talmudic codes. To this point, the differentiation is all just an academic exercise. Even if the remainder is not Biblically prohibited, it is certainly Rabbinically prohibited. A future post will (hopefully) look at the logic used by Dorff et al to overturn the remaining prohibitions.
Roth provides a number of philosophical objections to defining the Biblical prohibition narrowly. The first, from a halachic perspective, is the principle ספיקא דאורייתא לחומרא, that when there is an uncertainty with regard to application of a Biblical law, we rule stringently. The counterargument would be that this is a cop-out. The uncertainty here is not (yet) in application, it is in whether the law is actually Biblical. To the best of my knowledge, this principle is a guideline for deciding practical applications, not for categorizing. The second objection is essentially a slippery-slope argument. Roth argues that should we decide to limit the Biblical prohibition against homosexuality, there is no reason not to do the same for all the other sexual prohibitions in Lev. 18. However, deciding on the nature of the Biblical prohibition does no such thing automatically. Rabbinic prohibitions still prevent one from making any forms of bestiality or incest halachically legitimate. The ultimate question is whether there is any compelling reason to reconsider the Rabbinic prohibitions. Dorff et al are not suggesting that Rabbinic halacha is nonbinding. On the contrary, much of their case relies on Rabbinic jurisprudence. Roth's third objection is more sociological. He argues there is a difference between what a decisor would say to someone privately and what should be enshrined in law for all to read. But, the fact that this issue has come up as a societal issue rather than as a private issue demands a societal answer.
* A cynic would snicker at the parallels to the issue currently under discussion.
** I want to make absolutely clear here that when a halachist talks about a liability for a Biblical or Rabbinic penalty, it is not equivalent to a statement that the halachist thinks that someone should actually go out and punish another according to that penalty. Penalties are being used to make legal distinctions. Nothing more.
*** The text here is severely corrupted and it's a bit hard to tell which proof-verse is intended.
**** I should point out that even though the language is inconclusive, if you're willing to accept Dorff et al's perfectly reasonable understanding at face value, this passage is pretty much the only one presented that would strongly indicate that the sole definition of “sex the unusual way” is anal sex. (Updated: 1/12/2007)
Many thanks to DW for helping me proofread and copy-edit.
Labels: conservative judaism, gay, halacha, homosexuality, judaism, lesbian, responsa, teshuva
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.
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.
Labels: conservative judaism, gay, halacha, homosexuality, judaism, lesbian, responsa, teshuva
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.]
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:
- Dorff, Nevins, Reisner (accepted)
- Geller, Fine, and Fine (rejected)
- Levy (accepted)
- Roth (accepted)
- Tucker (rejected)
- Weiss (concurring opinion)
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.]
Labels: conservative judaism, gay, halacha, homosexuality, judaism, lesbian, responsa, teshuva
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.
I expect that my first substantive post will be about the role of science in these teshuvot.
Labels: conservative judaism, gay, halacha, homosexuality, judaism, responsa, teshuva
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 OpenOffice.org.
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 OpenOffice.org.
Labels: conservative judaism, gay, halacha, homosexuality, judaism, lesbian, responsa, teshuva
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.
*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.
Labels: conservative judaism, gay, halacha, homosexuality, judaism, lesbian, responsa, teshuva
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.
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.
Labels: conservative judaism, gay, halacha, homosexuality, judaism, lesbian, responsa, teshuva
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:
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.
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.
Labels: conservative judaism, gay, halacha, homosexuality, judaism, lesbian, responsa, teshuva
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.
Labels: conservative judaism, gay, halacha, homosexuality, judaism, responsa, teshuva
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...
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...
Labels: conservative judaism, gay, halacha, homosexuality, judaism, lesbian, responsa, teshuva
