HOMOSEXUALITY
AHAREY MOT, 5763

I told you that I had been asked by a journalist from NY if I intended to speak about homosexuality on this Shabbat, in light of the renewed discussion of the subject in the Conservative movement. I replied (at that time) that I hadn't thought past Pesah. In the end, I decided to speak on subject. According to my records, I did so in 91/92, on YK afternoon (when we also read Lev. 18), in 1993 (the year of Issue 3 in Cincinnati), in 1998 (when the gay man Matthew Shepherd was murdered), and in 2000. Having mentioned some of these particular events, let me say that, while there are different views in the Conservative movement about homosexuality, we all strongly and unequivocally oppose persecution or harassment of people, or social discrimination against people, on the basis of their sexual orientation.

Let me also say something about our synagogue. We like to think of ourselves as being inclusive, which includes being inclusive of gay people. However, my ultimate commitment is not to inclusiveness, to egalitarianism, to participation, to pluralism, or to any of those good things. It is to God and to Torah, which I understand as traditional Judaism. Because of that commitment, I may sometimes take positions which seem not inclusive, not egalitarian, or not pluralistic. That is the way it is. However, given who I am, I do value inclusiveness, egalitarianism, and pluralism, and that is the way that is.

In any case, here I am again. The current ferment in the Conservative movement, as I understand it, has two aspects: CJLS, which considered the matter of homosexuality in detail in1992, has been asked to re-examine the issue. Also, there seems to be widespread dissatisfaction among students at JTS about the Seminary's policy on gay rabbinic and cantorial students ("Don't ask, don't tell").

This morning, I am going to touch on three aspects of the subject:

1) The core halakhic issue
2) The issue of openly gay people as rabbis
3) The question of gay marriage, or "commitment ceremonies"

The verse from which we shall start out (and, of course, to start out there is already to make a statement about the subject) is Lev. 18:22 "Do not lie with a male as one lies with a woman; it is an abhorrence" I want to say two things about verse:

1) It is not talking about "homosexuality", about sexual orientation, about feeling sexually attracted to members of the same sex, but rather about a specific act, male homosexual anal intercourse. There is no halakhic prohibition of being homosexual, in the sense of having certain feelings; "feelings just are". The prohibitions, such as they are, are of certain acts.

2) The verse from Leviticus is not end of story. We don't posken directly from Biblical verses. Sometimes a verse will accurately capture the essence of the halakha, but that is a coincidence, perhaps the exception rather than the rule. We have to look at the way in which the ongoing Jewish tradition has viewed a given issue.

In this case, the tradition has maintained, and even extended, the prohibition. The Sifra (the Tannaitic Midrash on Leviticus, which is crucial for giving the "Jewish interpretation" of the Bible), the Talmud in Sanhedrin, Maimonides Code, etc., all say that homosexual acts are prohibited. There have been attempts to undermine that prohibition. One, which is common in liberal Protestant circles, and which was also was offered by Rabbi Bradley Shavit Artson in 1992, was that the Biblical prohibition applied only to violent, exploitative, sexual acts, or to those done in the context of pagan cults. This attempt fails for two reasons: it is not a convincing explanation of the Biblical text, and it ignores the rest of the tradition. (In all fairness to Rabbi Artson, he did try to deal with post-Biblical Jewish sources on homosexual acts, but his discussion of them was not convincing either.)

My view of the situation is that the tradition didn't recognize the category of sexual orientation. It assumed that all people were really straight, but that some people perversely went after members of their own gender. Look at the story of Sodom and Gomorrah - The people of Sodom seemed to have been satisfied either with the male visitors or with Lot's daughters. In the Talmud at Nedarim 51b, a certain Bar Kappara offered an interpretation of the term "toevah" (which we usually translate as "abomination" or "abhorrence", and which Leviticus uses with regard to homosexual acts). Two medieval authorities, commenting on that Talmudic passage, say that Bar Kappara meant that "people leave their wives and go after males". The problem, in the Bible and in the Middle Ages, seems to have been heterosexual people engaging in homosexual activities.

Now, I could understand and accept the Torah's prohibition of that kind of action, that the Torah is saying that basically heterosexual people who are tempted to experiment with homosexuality shouldn't do it. I could also understand and accept the Torah's saying that true "bi"s should develop only their heterosexual side. The problem I have is with the Torah's saying that people who are truly homosexual must either engage in sexual activities in which they have no personal engagement, or remain celibate throughout their lives. Neither of those courses fits very well with general Jewish sexual ethics. Why don't I say then that the prohibition applies only to straights or "bi"s? My interpretation is speculative, and the prohibition is clear and absolute. That point was made by Rabbi Avram Reisner, who contributed a paper to the 1992 Law Committee discussion.

I am assuming here the prevailing medical view that sexual orientation is either innate or formed very early, and, in any case, not susceptible to change. It is improper, especially for non-specialists, to rely on anecdotal reports of people's changing their sexual orientation. However, I must say that, in my lifetime, medical opinion has changed from treating homosexuals with hormones, to treating them with psychoanalysis, to treating them with behavioral conditioning, to saying that there is no treatment, indeed, that there is nothing to treat. As a non-psychiatrist, the only rational and responsible thing for me to do is to accept the current prevailing psychiatric view of homosexuality. However, as a rabbi, looking at that history does make me less inclined to go out on a halakhic limb on the basis of today's medical opinion.

In 1992, the paper which got the most support in the CJLS was that of Prof. Joel Roth, who affirmed, in no uncertain terms, the traditional prohibitions. In 1992, I was surprised at the punitive tone of part of Rabbi Roth's paper, but I was inclined to say that he got the technical halakha right. Rereading the paper now, I have a larger number of reservations, but I still agree with Rabbi Roth on the core halakhic issue.

One of my reservations deals with forms of homosexual activity other than male anal intercourse. Roth argues, mainly on the basis of Maimonides, who relies on the Sifra, that all forms of homosexual activity are prohibited by Torah law. Roth basing himself on Maimonides basing himself on the Sifra makes a formidable argument, but it has always seemed counterintuitive to me, and it is not the only possibility. The Ramban, Nachmanides, in his Hasagot (critical notes) on Rambam's Sefer Hamitzvot, holds that at least some forms of homosexual activity are prohibited, not mid'oraita, but miderabbanan.

Now, we cannot blow off prohibitions which are miderabbanan. Eating chicken with milk is prohibited miderabbanan!), but they are different from prohibitions of the Torah. Imagine that you are on a desert island, and there is no truly kosher food available, but there is a variety of other foods, ranging from some which contain mon- and di-glycerides (which might be derived from non-kosher animals), to pork. If you think that you will be rescued that day, you may not eat anything, but, eventually, you will have to eat. However, each day is a new day, with new choices. You will probably start with the food with mono- and di-glycerides, and hope that you will never feel that you have to eat the pork.

Rabbi Elliot Dorff mounted a vigorous attack on Rabbi Roth in 1992, charging Roth with "formalism" (looking only at texts and not at the context), and saying that his position was "cruel". (He was careful to say that Joel Roth was not cruel, but that Rabbi Roth's position was cruel.) On the first point, I would say that what appears as formalism to one person appears to another as taking texts seriously. However, I must admit that halakhic position which Rabbi Roth and I believe is normative halakha is cruel, and that is a problem.

I would address the problem in two ways. One is to refer to my analogy of the non-kosher food on the desert island. The other is to take inspiration from something which Rabbi Reisner wrote on a different subject, the ethics of the end of life. On that subject Rabbi Reisner wrote the more restrictive of two papers accepted by the Law Committee (The more permissive one was written by Rabbi Dorff.) He considered the situation of a person who finds no relief in any of the measures of which Rabbi Reisner would consider permitted. Rabbi Reisner writes (and this is my interpretation of his words) that each person has his or her own personal relationship with God. For a traditional Jew, halakha is an important component of this relationship, but it is not the only one. Halakha is a specific, historically conditioned, communal, legal system. It is flexible, but not infinitely flexible. Sometimes people may find that their consciences permit, or even require, them to deviate from halakhic norms.

Let me talk now about the question of openly homosexual rabbis. (Remember that the current JTS policy is "Don't ask - don't tell") If homosexual actions are prohibited, then it may seem obvious that gays cannot be rabbis. But it is not obvious. First, there are no rules in halakha about who may be a rabbi. At the most basic level of Judaism, you don't really need rabbis. The issue is, rather, that a rabbi should set a good Jewish example. What does that really mean? A rabbi should be loyal to other people, keep his commitments, be responsible, exert self-control, etc. Gay people can do all of those things as well as straight people. The discussion of this subject has suffered from an improper (and prurient) fixation on one particular form of sexual activity - male homosexual anal intercourse.

Studies have shown that many gay people don't engage in male-to-male anal intercourse. Women don't do it, and some men don't do it. It is easy to imagine that in traditional Jewish circles, people would make a special effort to avoid that particular action. But what about other forms of homosexual activity, which are also forbidden, in one way or another? We should remember that in Leviticus 18, we also read about the monthly separation between husband and wife. B'ilat niddah, having sex with a woman who is niddah, was not punished with the death penalty, but it does make one liable to karet. it is in the same halakhic category as eating bread on Pesah. Pretty serious.

There are no surveys on how many Conservative rabbis observe taharat hamishpahah, but my impression is that, while some do, many don't, and nobody makes an issue of this. If we don't worry about what straight rabbis do in their bedrooms, why should we worry about what gay rabbis do in their bedrooms? Now, I must tell you that, if I were on a rabbinic search committee, I might have some reluctance to hire openly gay rabbi. Some of you know that, at one time, there was an openly gay person on the staff of this synagogue. I say "openly gay" because I, and at least a few other people, knew about this person's sexual orientation before the person was hired, and we decided that it didn't matter. I remember, however, saying to myself, "It is not as if we were hiring a full-time assistant rabbi, who will be part of the community." That was quite a few years ago; my feelings might have changed, or they might not have. In any case, I don't think that my personal feeling should necessarily be the policy of Conservative movement.

The last question which I shall discuss is that of "gay marriages" or "commitment ceremonies". The official policy of the Conservative movement, which comes from the 1992 Consensus Statement, is that Conservative rabbis should not officiate at such ceremonies. Some do, but what they do is definitely contrary to movement policy. (In that connection, the case of Rev. Steven Van Kuiken, who was tried by the Presbyterian Church for officiating at same-sex commitment ceremonies, is interesting. Could such a thing happen to a rabbi. There are several differences between our situation and that of the Presbyterian Church. The bottom line is that it is theoretically possible, but extremely unlikely, that a Conservative rabbi who does officiate at such ceremonies would be disciplined by the Rabbinical Assembly.)

I don't officiate at gay commitment ceremonies, and I don't plan to do so in the near future. I certainly understand why gay Jewish couples want to have such ceremonies; they want religious recognition of their desire and intention to have a Jewish life together, just as straight Jewish couples who get married do. Furthermore, such unions might promote stable, long-term, relationships, and monogamy among gay Jews. All of those are good things. The problem is that when we speak of "marriage" in a Jewish context, should really speak of kiddushin.

The historical halakha is clear - there can be no kiddushin between people of the same sex. The traditional expression is "eyn kiddushin tofsin" At least one Conservative rabbi who officiated at a gay commitment ceremony called it kiddushin, but most of the Jewish commitment ceremonies are something else. I have seen one plan for such a ceremony, and my problem is that it looks too much like a wedding ceremony. The rabbi who wrote it obviously took the Jewish wedding ceremony and changed a bit here and a bit there, so that he knew and I knew that he was not claiming to establish kiddushin, but other people who saw the ceremony might not know that. I am concerned that our officiating might weaken our position vis-a-vis other "commitment ceremonies" which are not kiddushin - mixed marriages, or marriages of people previously married who have not obtained a Jewish divorce. Conservative rabbis definitely may not officiate on such occasions, and officiating at ceremonies which look like kiddushin but are not might blur that important line.

Related to that issue is that of synagogue membership for gay couples. Our policy, which is based on a decision of the Committee of Jewish Law and Standards, is that only people who are married may have family membership in the congregation. Two gay people who live together may be members, but only as individuals. The policy was really made for the case of straight couples who live together without being married. People live together. I am not shocked or outraged to learn that, but I think that it is too much to expect that a Conservative synagogue will give official recognition to such an arrangement. That position has implications for gay couples as well.

You can tell (I hope) that this issue really bothers me a lot. My general social outlook is liberal. Perhaps more than on any other issue, I feel a conflict here between my allegiance to the Torah and my other values. Clearly, all that I have been doing is nibbling around the edges of the problem. To see a major change, it will take someone to cut the Gordian knot and say (for example), "There can be kiddushin between two people oft he same sex." If one rabbis say that, it is nonsense, but if hundreds of rabbis say that consistently over many years, it will be so. Another possibility (and one certainly more congenial to Conservative Judaism) is that we shall change paradigms, looking at the same material in a different way. It is like the drawings which one may see either as a vase or as two people looking at each other. An example of such a paradigm change was what happened on the women's question.

I am sure that you realize that there is ample traditional warrant for defining a minyan as 10 Jewish men. There were counterindications, but they were relegated to footnotes or parentheses. However, at some point - and this came about because of my experience of dealing with you and talking with you about the subject, and of arranging minyanim several times a week - I came to see things differently, so that the parenthetical material became the main text, and the main text became parenthetical. The same thing might happen in the case of homosexuality (or it might not). It might take another generation of rabbis to make that paradigm shift. Or rabbis like me might make it some day. But not this morning.

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