Monday, March 15, 2004

Homosexuality in Halakhah

In a post titled "Conservosexuality, II", blogger Zackary Sholem Berger linked to a number of halakhic papers from scholars of the Conservative movement regarding Homosexuality and halakhah. Being the industrious and curious person that I am, I printed out two of the papers to read -- one paper by CRabbi Joel Roth titled simply Homosexuality and another by CRabbi Simchah Roth titled "Dear David - Homosexual Relations: A Halakhic Investigation".

Mr. ZS Berger evidently found the Simcha Roth paper to be convincing while I did not. Below are my comments that I sent to ZS Berger and asked him to post on his blog. He graciously did so and appended his comments to the post. The following are my uninterrupted comments with minor changes:

Dear Sholem,

On your blog you raised the issue of halakhah and homosexuality, pointing readers to the papers of CRs. Simcha and Joel Roth on the subject. Allow me to respond to some significant deficiencies I found in CR. Simchah Roth’s paper. I am just looking at Part 1 of his paper and I am intentionally focusing on the dry legal aspects because that is what interests me and because I have no pastoral obligations or experience. I do not pretend that such issues are unimportant because, in real life, they are probably most important.

Page 7: “Rabbi Aharon Feldman in Jerusalem tells a story about the Brisker Rav.” In footnote 33, CRS Roth misidentifies the Brisker Rav as Rabbi Chaim Soloveitchik rather than his son, R. Yitzhak Ze’ev Soloveitchik, who is widely referred to as the Brisker Rav.

Page 8: “Women are not obligated to marry and procreate.” CRS Roth is correct that women are not obligated to procreate and his prooftext from Mishneh Torah is right on target. However, he fails to distinguish between an obligation to marry and an obligation to procreate. Rambam lists them separately in Sefer Ha-Mitzvot (positive commandments 212 and 213) and only regarding procreation does he say that women are not obligated. The Sefer Ha-Hinukh follows suit (commandments 1 and 552). Nevertheless, it is quite likely that a lesbian is exempt from the obligation to marry.

Page 12: “This requirement does not seem to have been strictly enforced in talmudic times.” CRS Roth states that the prohibition against fondling and kissing was not enforced in the times of the Talmud and brings proof from a story about Ulla who reportedly kissed his sisters on their hands. Even according to the original version of the story, that he kissed them on their chests (surely CRS Roth recognizes that there is more to a woman’s chest than merely her breasts, especially when dealing with young girls), CRS Roth fails to distinguish between non-sexual contact - she-lo be-derekh hibah­ - and sexual contact. The story about Ulla is a proof that non-sexual contact, such as handshaking, is permissible. It implies nothing about touching that sexually stimulates.

Pages 12-13: “Someone who is under constraint is not required to fulfill a mitzvah at all” CRS Roth correctly cites R. Yosef Engel as stating that there is no sinful act for an anus. This is also the view of R. Chaim Soloveitchik as cited by his student R. Baruch Ber Leibowitz in his novellae to Ketuvot. However, this is not an undisputed matter. No less an authority than R. Akiva Eiger disputes the entire idea, as clarified by R. Elchanan Wasserman in his Kovetz Shiurim. This is a very complex and difficult matter that cannot be stated matter-of-factly.

Page 13: “Pedophilia and kleptomania (and so forth) are recognized psychological disorders… homosexuality is not a pathological condition of the psyche” So what? It is a distinction but distinctions are only meaningful if they are relevant to the topic of discussion. CRS Roth quoted R. Reuven Kimmelman as arguing that kleptomaniacs are anus to sin just like homosexuals are anus to sin. CRS Roth responds that the reasons for the ones are different but fails to explain why that difference is significant. At the end of the day, regardless of the cause of the psychological duress, both kleptomaniacs and homosexuals are anussim. Therefore, according to CRS Roth’s reasoning, kleptomaniacs do not sin when they steal. I find that to be a fatal flaw in his approach.

Page 13: “But halakhah does not discriminate against left-handed people because they have a natural and non-pathological condition…” But it does. A left-handed cohen is considered to be defective and may not perform the avodah. Halakhah also discriminates against people with bad voices, who should not be appointed as permanent Hazzanim; kohanim with deformed hands, who may not recite the priestly blessing in the synagogue; men who cannot grow beards, who are not considered to be fully adult until they reach the age of twenty; etc. etc.

Page 15: “Rava states that the human male must always be held to be in control of his sexual behavior… today, any male - straight or gay - will vouch for the fact that he can have an erection even at moments that cause him the most embarrassment” CRS Roth totally misses the point. According to Rava, ones can only apply to actual, physical restraint. If a man is extremely attracted to a forbidden woman, something that Rava surely would acknowledge as possible, he may not claim that he was forced by his passion to sleep with her. Rava added that, in addition to the inability to claim attraction as duress, a man also may not claim physical duress. This totally undermines CRS Roth’s argument that attraction is a form of duress. If it were, then even a heterosexual man would be able to claim such ones for, e.g., sleeping with a married woman to whom he is extremely attracted. (As an aside, it is highly problematic from an historical perspective to claim that Rava ignored the possibility of an unintentional erection. I can think of a number of possible explanations, but something this obvious would certainly not have eluded him.)

Page 17: “I strongly suspect that in all segments of Conservative Jewish society masturbation is not looked upon as an unforgivable sin, under any circumstances” A rabbi must teach halakhah even if it is ignored. There is a difference between overlooking a common sin and permitting it.

Page 17: “Apart from the gay person there is no one in the whole breadth of compassionate Jewish life to whom halakhah, as heretofore interpreted says, ‘you may never, ever, under any circumstances, find legitimate sexual expression and enjoy physical love’.” This is untrue. First, there is the agunah. CRS Roth addresses this by stating that the Conservative movement has adopted solutions to solve the problem. I’m not sure that they solve every type of agunah problem but it does not matter for this discussion. Since I reject the various Conservative attempts as insufficient, I see his categorical statement as incorrect. A woman whose husband simply disappears may never touch another person sexually for the rest of her life. A woman whose husband adamantly refuses to give her a get may also never do so. She might have a glimmer of hope, which is more than a homosexual has, but I assure you that it will not appease her one bit. She is no less deserving of our sympathy and tears than a homosexual. Furthermore, I have male friends who have already given up on ever marrying. They know that they will die as virgins. Is it their choice to be single? I hope that we can be more mature than blame the “single’s problem” on people being too choosy. They have tried but not succeeded and have given up. Some are socially awkward, others are so uniquely situated that they cannot find someone similar enough to marry and others are simply unattractive on various level, none of which is their fault. The bottom line is that they will never, ever have sex in their lives. I have sympathy for them, and I wonder how they can do it. But I would not distort the Torah and permit non-marital sex out of pity for them. The Torah is too important to be treated that way.

Page 17: “The alternative to condoning some homosexual acts is to condemn the observant gay person to a life without any possibility of expression of physical love” Here, CRS Roth sets two extreme positions and demands that we choose either the compassionate one or the ruthless one. He neglects the statements from Orthodox rabbis with which he started the paper that try to navigate a third way, namely state that such acts are sins but in private counseling sessions work with the homosexual person to minimize the sins and find ways to live as healthily and religiously as possible. A homosexual who can contain his needs is a tzadik. A homosexual who cannot is not a tzadik. I can live knowing that I am not a tzadik and I see no need to distort the Torah so that someone else need not feel guilty. I know religiously oriented people who fully believe that they must observe Shabbat but feel that it is so great a restriction on their lives that they will never be able to do it. So they live their lives knowing that they are not perfect. Never do they demand that a rabbi state that their actions are permissible. They know that what they are doing is wrong but they feel compelled to do it. This is, indeed, standard in many segments of the Sephardic community.

Page 18: “It is surely more laudable to adopt the path of ko’ah de-hetera adif” Here is what I have written on the margins of my copy of this paper: Augh!!! This talmudic saying is not a praise of leniencies. It is a statement that the burden of proof on someone being lenient is greater than on someone who is being stringent. Therefore, someone who reaches that state of having sufficient proof to be lenient must have a very strong case.

Pages 18-19: “You would not be aiding or encouraging him in his wrongdoing if he were going to do it anyway” This is a complicated matter and CRS Roth glossed over an entire issue. Lifnei iver only applies to someone who cannot otherwise sin. However, there is still a rabbinic prohibition of mesaye’a yedei ov’rei aveirah. CRS Roth ignores it. R. Moshe Feinstein and others jump through hoops in order to come to their conclusions in their specific cases. CRS Roth ignores those issues, explicitly discussed in the responsa he cites, and fails to explain why mesaye’a does not apply to homosexual acts. It could be that his conclusion is still correct, but he needs to address this complex issue.

Page 19: “We have already demonstrated that there is ample room for accommodation to their special needs through halakhically condoning them” CRS Roth explained earlier that we have to allow homosexuals to perform certain sins. Now he is claiming that his earlier logic proved that they are not sins at all. Condoning is not permitting.

In conclusion, CR Simchah Roth has failed to provide a sound halakhic reasoning to permit any form of homosexual activity. Both fondling and intercourse remain prohibited, despite our profound sympathy for the disadvantaged homosexual. How, exactly, to counsel individuals - when to tell them to fight their desires and when to instruct them on how to minimize their sins - is a very important pastoral issue that I am insufficiently qualified to address. However, I will add another halakhic issue - the largest problem I had with the CR Joel Roth’s paper. CR Joel Roth argues on pages 5-6 of his unnumbered paper that homoerotic fantasies are permissible as long as they do not lead to homosexual activity. He rightly contends that the discussion of hirhur is complex but states, “What is important to note is that the avoidance of hirhur is a desideratum, not a legal requirement. One must attempt to avoid hirhur, but is not legally liable for failure.” These two sentences are very different and, I believe, only the second is accurate. Hirhur - sexual fantasizing - is prohibited explicitly in the Talmud (Ketuvot 46a) and codes (Mishneh Torah, Hilkhot Issurei Bi’ah 21:5; Shulhan Arukh, Even Ha-Ezer 23:3). Both a heterosexual and a homosexual man must try to avoid sexual fantasies, even if complete success is impossible. This includes avoiding suggestive films and situations that will likely lead to such fantasies. Indeed, someone who fights his battle on the realm of thoughts will find that he is much less prone to more severe sins than otherwise.

I trust that my comments here will be seen as a confrontation with difficult halakhic concepts and not stereotyped as a homophobic response of hiding behing legalisms.



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