A Response To The Conservative Teshuva On Homosexuality

A Brief Note On Conservative Methodology

To fully appreciate this teshuva as a halakhic argument we should first place it in the context of Conservative halakhic hermeneutic. Since its inception, the goal of Conservative Judaism has been to solve contemporary religious issues through traditional sources and logic. In many ways Conservative Judaism functions like an Orthodox community; their panel of rabbis discuss halakhic issues and decides on a course of action.

With exceptions, the general tendency of the Committee on Jewish Law and Standards (CJLS) has been towards the side of ruling leniently or permissively in most halakhic issues. This tendency has drawn criticism from more traditional halakhists as being intellectually and religiously dishonest,1 with charges that the CJLS manipulates the halakhic process to justify its predetermined dispensations. But from the perspective of Conservative Judaism, Jewish law has traditionally employed creative halakhic reasoning where there is a perception of social need.2 In fact, even contemporary Orthodox Rabbis continue this practice, although more often leaning towards the side of stringency.3 But unlike the similarly liberal Reform movement, Conservative Judaism will go to great lengths to base their opinions on traditional halakhic principles.

For example, in 1950 Conservative Judaism adopted highly controversial position that in limited circumstances one may drive to synagogue on Shabbat. While this decision to permit driving was likely made beforehand, the actual teshuva follows traditional - albeit dubious - halakhic reasoning. Given that halakhic tradition has usually allowed for more flexibility in Rabbinic prohibitions, the teshuva's authors Rabbis Morris Adler, Jacob Agus and Theodore Friedman first classified the act of driving on Shabbat as a rabbinic prohibition, and did so relying on an opinion Tosafot.4 Once they defined driving on Shabbat as a rabbinic prohibition, they then turned to centuries of halakhic precedent where rabbinic decrees were suspended in times of great need.

I cite this example because the new teshuva on homosexual relationships follows this exact pattern. The CJLS lead by Rabbi Elliot Dorf distinguish between what is biblically and rabbinically prohibited with the intent to be lenient on the rabbinic prohibitions due to what they perceive to be halakhically mitigating circumstances.

The Pesak and its Arguments

Page 29 of the teshuva summarizes the four main conclusions of the pesak:

1. The explicit biblical ban on anal sex between men remains in effect. Gay men are instructed to refrain from anal sex.

2. Heterosexual marriage between two Jews remains the halakhic ideal. For homosexuals who are incapable of maintaining a heterosexual relationship, the rabbinic prohibitions that have been associated with other gay and lesbian intimate acts are superseded based upon the Talmudic principle of kvod habriot, our obligation to preserve the human dignity of all people.

3. This ruling effectively normalizes the status of gay and lesbian Jews in the Jewish community. Extending the 1992 CJLS consensus statement, gay and lesbian Jews are to be welcomed into our synagogues and other institutions as full members with no restrictions. Furthermore, gay or lesbian Jews who demonstrate the depth of Jewish commitment, knowledge, faith and desire to serve as rabbis, cantors and educators shall be welcomed to apply to our professional schools and associations.

4. We are not prepared at this juncture to rule upon the halakhic status of gay and lesbian relationships. To do so would require establishing an entirely new institution in Jewish law that treats not only the ceremonies and legal instruments appropriate for creating homosexual unions but also the norms for the dissolution of such unions. This responsum does not provide kiddushin for same-sex couples. Nonetheless, we consider stable, committed, Jewish relationships to be as necessary and beneficial for homosexuals and their families as they are for heterosexuals. Promiscuity is not acceptable for either homosexual or heterosexual relationships. Such relationships should be conducted in consonance with the values set out in the RA pastoral letter on intimate relationships, "This Is My Beloved, This Is My Friend": A Rabbinic Letter on Human Intimacy. The celebration of such a union is appropriate.

Despite the widespread media coverage of this teshuva, there are few actual innovations - those in point two which we will discuss shortly. First and foremost, the explicit biblical prohibition is unchallenged. This is essential since not only is mishkav zachar a capital offense (Lev. 20:13), but the CJLS retains the precise halakhic restrictions on homosexual relationships.

Point three allows for homosexuals to be admitted to rabbinical school, which would be a significant change in Conservative policy, but not necessarily in opposition with halakha. There is no prohibition against being homosexual, but only on performing certain actions. Having the predisposition to commit certain prohibitions cannot alone disqualify candidates for the rabbinate since by that measure no human candidate would ever be eligible (Ecc. 7:20). In terms of how homosexual rabbinical students would function, the teshuva includes an inconspicuous yet crucial qualification in footnote 117:

We expect homosexual students to observe the rulings of this responsum in the same way that we expect heterosexual students to observe the CJLS rulings on niddah. We also expect that interview committees, administrators, faculty and fellow students will respect the privacy and dignity of gay and lesbian students in the same way that they respect the privacy and dignity of heterosexual students (55).

In other words, the Conservative rabbinical schools can assume and expect that its students are following Conservative halakha, but would also maintain the policy of "don't ask, don't tell" preempting personal inquisitions. This policy seems reasonable and, as far as I am aware, consistent with other rabbinical schools. Should a rabbinical student openly flaunt the religious standards of his (or her) seminary, the school could (and in some cases should) view such an infraction as grounds for expulsion. How this standard would be practically applied remains to be seen.

Finally, point four evades the question of homosexual marriages as a religious institution. The teshuva does not reject homosexual marriage on moral grounds as explicitly as the Rabbinic sources (Safra Kedoshim 9:9, B. Hullin 92b),5 but it certainly does not endorse them either, although for what appears to be pragmatic reasons. This distinction may offend traditionalists, but the formulation is consistent with the goals of the teshuva to "normalize" homosexual relationships within a pure halakhic framework.

This leaves us with the only real halakhic innovation of the teshuva - that all other sexual activity between homosexuals is permitted lechatchila. As with the teshuva on Shabbat driving, this teshuva attempts to classify all other intimate acts as rabbinic prohibitions, but oddly enough have more textual support in this instance. For example, lesbian sexual activity is considered as "pirtzuta b'alma" (general licentious) (B. Yevamot 76a) and in the words of Abaye, "u'fritzuta mi assar rachmana" - where did the Torah forbid licentiousness (B. Sotah 26b)?6

For homosexual men who do have a biblical prohibition for mishkav zachar, the biblical prohibition of "coming close" to forbidden intercourse could be applicable (Lev. 18:6, 18:30). Rambam interprets this to mean "Do not approach those things that lead to prohibited sexual relations" (Hil. Issurei Biah 21:1) However, the teshuva counters with other alternatives:

Other authorities reject this assessment. Ramban (Nahmanides) argues at length in his comments to Sefer haMitzvot that "do not approach" is not a biblical prohibition, noting that the Sifra text is not cited by the Talmud. On the contrary, two amoraim, R. Pedat (Shabbat 13a) and R. Yose b R. Bun (Y. Sanhedrin 7:7), explicitly assert that when the Bible speaks of "approach" it is referring euphemistically to sexual intercourse, and their view is unrefuted by any other amoraic comment...In summary, Ramban holds that only anal sex is assur d'oraita (biblically prohibited); the broader restrictions are forbidden by the Rabbis. The p'shat of the Bible favors Ramban, as do the clear amoraic statements, and we are convinced by those arguments (8-9)

Regarding the prohibition of masturbation, the teshuva in note 47 relies on Dr. Abraham Steinberg's findings in Intziklopedia Hilkhatit Refuit (2:407-9) that:

There are those who hold that the prohibition of destroying seed is biblical, someone wrote that it is a law stemming from Moses at Sinai, and some hold that the prohibition of destroying seed is rabbinic.... Since the prohibition of destroying seed was not directly made evident in the Torah, the halakhic authorities differ... regarding its source.... Those authorities that hold that the prohibition of destroying seed is rabbinic rejected the potential sources from the Torah in different ways (46).

Since there is a dispute as to the nature of the prohibition, the teshuva is free to rely on the opinions that masturbation is only a rabbinic prohibition.

As mentioned earlier, the advantage of classifying prohibitions as rabbinic allows for greater flexibility when faced with extenuating social needs. In the case of homosexuals, the need is to prevent a life of forced social and sexual isolation:

...the permanent social and sexual loneliness mandated by halakhic precedent for homosexuals undermines their human dignity. However, we reject attempts to distort this argument by claiming that, if so, every human desire deserves to be satisfied. In fact, Judaism teaches us constantly to bend individual desire to fulfill the will of God. Some sexual desires must be delayed, and some must be permanently suppressed. What distinguishes the situation of gay and lesbian Jews from others who experience forbidden sexual desires is that heretofore, gay and lesbian Jews have had absolutely no permitted avenue for sexual expression or for the creation of a committed romantic relationship. It is this situation of absolute and permanent isolation that undermines their human dignity (4-5) [emphasis theirs].

In defining the social need to be lenient, the teshuva appeals to man's nature not to have specific desires, but to the general natural need for companionship and an outlet for sexual inclinations. Forcing people to repress this element of humanity is for the teshuva a violation of "human dignity" which is later equated with the halakhic construct of "kavod haberiot."7 Once the prohibitions are defined as rabbinic, and the problem is established as one of "kavod haberiot" the teshuva continues at length giving examples from the Talmud and modern sources where kavot haberiot was used to suspend rabbinic, and occasionally biblical commandments (14-22). Given the extensive precedent of kavod haberiot overriding other halakhot, the teshuva concludes that it is equally imperative to be lenient in the rabbinic prohibitions related to homosexual relationships.

The Rebuttal

I would like to digress for a moment at this point and explain the intention behind my rebuttal. I have found in my experience that when controversial halakhic arguments are made there is a tendency in the Orthodox community to dismiss them usually through ad hominem attacks. Such responses in my opinion are not only socially disruptive but are intellectually lazy. If an opinion is so obviously incorrect and illegitimate then the opposition should have no trouble formulating a coherent counter argument which successfully respond to the initial assertions, sources, and logic. The problem is that this is usually much more difficult than simply delegitimizng the individual or source of the argument as opposed to addressing the traditional sources to which Orthodoxy claims to adhere. I will not be making any ad hominem attacks, nor will I resort to homophobic rhetoric. Rather, my intention is to demonstrate where the teshuva's argument fails on its own merits as being inconsistent and incompatible with Torah.

While the teshuva goes to great lengths extolling the ethical mandates in halakha in the area of human dignity it ignores that this ethic is part of a larger moral ethos, one which is especially cautious in matters of illicit sexual relationships - known as "'arayot." The sages were well aware of the allure of sexual desires even suggesting that a captured pregnant woman could still have had relations since "there is no guardian against 'arayot" (B. Ketuvot 13b). The sin of 'arayot caused Jews to be exiled from Israel, and to lose the divine presence from dwelling among them (B. Shabbat 33a). The sages also recognized the human nature towards sexual desires (B. Haggigah 11b) to the point where Rav is quoted as saying that the Jews only accepted idolatry not for intellectual or theological reasons, but to avail themselves of sexual freedom allowed by other religions (B. Sanhedrin 63b).

The CJLS teshuva does not deny these principles, but it does ignore that the Sages enacted their "fences" because of the extreme halakhic consequences and the intensity of personal desires. One such "fence" mentioned by the teshuva is the law of yihud - being alone with someone who is forbidden as one of the 'arayot. Despite homosexuality being one of the forbidden relationships the in the category of 'arayot, it was not included in the laws yihud because the Sages "did not suspect Jews would commit bestiality or mishkav zachar" (B. Kiddushin 82a).

The teshuva applies part of principle of "suspecting" as "common-sense" legislation:

Just as the Sages of old exempted themselves from some of the severity of the laws against contact between the sexes between relatives, so have we concluded that average people can be trusted to maintain appropriate relations despite social kissing and hugging and moments alone together, even behind locked doors. Ramban discusses the logic of legal fences. We prohibit a man from sleeping in one bed, even clothed, with his neighbor's wife out of obvious concern for the urgings of desire in such a situation; but we permit sleeping together clothed to a married couple when she is a menstruant, or to relatives, for there is less reason to fear transgression. Even they, however, may not sleep together naked nor engage in sexual play. This is not a matter of biblical decree then, but a matter of common sense--where there is danger of the core prohibition being flouted, there is need for a legal fence. That is the reason that very same fence might be waived for those who are not under suspicion of transgression in this regard. Normative Jewish law and custom recognize no bar to males establishing a homestead. But sexual play remains rabbinically prohibited (10).

The statement "normative Jewish law and custom recognize no bar to males establishing a homestead" is misleading. The prohibition of yihud was not enacted for homosexuality because in their time homosexuality was too uncommon to warrant specific legislation. However, where there is in fact a reasonable suspicion of illicit sexual activity, additional restrictions are indeed mandated by Jewish law.

For example, as noted earlier bestiality was also considered uncommon enough not to have necessitated a general prohibition of yichud. But the Sages forbade leaving animals by people who had an inclination towards bestiality (T. Avoda Zara 3:2, B. Avoda Zara 15b, 22b). This "fence" is unusual since it is a restriction on a third party not to facilitate prohibited sexual activity. Consequently, in Hilchot Issurei Biah 22:6 Rambam writes that this enactment is not merely a rabbinic decree, but an application of the biblical prohibition of "lifnei iver" - placing a stumbling block before the blind (Lev. 19:14, Safra Kedoshim 2:2).

By citing this example I do not wish to morally equate homosexuality with bestiality, but to compare the halakhic applications. Both actions are prohibited, and were considered to be uncommon in society such that many of the takkanot established for other 'arayot would be unnecessary. Still, the Talmud did acknowledge that despite the rarity of these actions they were still prevalent in certain societies8 and legislated accordingly.

In light of Torah's abhorrence of sexual transgressions, classifying homosexual behavior as a matter of kavod haberiot and then ruling permissively on ethical grounds is nothing less than deceitful. Of all the examples of kavod haberiot cited in the teshuva, I did not find one which discussed being lenient in the area of sexual activity. This absence is not surprising given the severity with which Torah treats the prohibitions of 'arayot.

In fact, the Talmudic Sages explicitly acknowledged the difficulty in controlling one's desires. But compare the teshuva's implications with the following passage:

R. Il'ai the Elder said: If a man sees that his [evil] desire is conquering him, let him go to a place where he is unknown, don black and cover himself with black, and do as his heart desires, but let him not publicly profane God's name (B. Kiddushin 40a).

In another sugya, the Talmud discusses a man who wished to fulfill his illicit desires through permitted means:

Rab Judah said in Rab's name: A man once conceived a passion for a certain woman, and his heart was consumed by his burning desire [his life being endangered thereby]. When the doctors were consulted, they said, 'His only cure is that she shall submit.' Thereupon the Sages said: 'Let him die rather than that she should yield.' Then [said the doctors]; 'let her stand nude before him;' [they answered] 'sooner let him die'. 'Then', said the doctors, 'let her converse with him from behind a fence'. 'Let him die,' the Sages replied 'rather than she should converse with him from behind a fence.'

Now R. Jacob b. Idi and R. Samuel b. Nahmani dispute therein. One said that she was a married woman; the other that she was unmarried. Now, this is intelligible on the view, that she was a married woman, but on the latter, that she was unmarried, why such severity? - R. Papa said: Because of the disgrace to her family. R. Aha the son of R. Ika said: That the daughters of Israel may not be immorally dissolute. Then why not marry her? - Marriage would not assuage his passion, even as R. Isaac said: Since the destruction of the Temple, sexual pleasure has been taken [from those who practice it lawfully] and given to sinners, as it is written, Stolen waters are sweet, and bread eaten in secret is pleasant (B. Sanhedrin 75a).9

Torah law accepts that at times people will be unable to restrain themselves, but despite this recognition it does not excuse nor absolve the transgression. The Talmudic ethos demanding sexual discipline necessarily supersedes the desires of the individual, even in instances where the action would otherwise be technically permitted.

Conclusions

The issue of homosexuals in halakha is not an easy one. Centuries of damning literature and cultural homophobia have understandably alienated homosexuals from Judaism. On the other hand, the halakha necessarily restricts human behavior. To their credit, the CJLS should be commended for their undertaking of this serious issue, and for the most part staying within the halakhic tradition. The problem is that the predetermined desire towards a specific outcome often leads people towards accepting erroneous assumptions and ignoring contradictory data. In the one true innovation of the teshuva, the CJLS effectively eliminated several rabbinic prohibitions, preferring narrow and selective ethical standards.

As I argued in Lonely Men of Faith, the Torah restricts heterosexuals as well. That no permitted outlet exists is unfortunate, and given the social and psychological research may be grounds for hora'at sha'ah - a dispensation relative to specific instances. But this is a very different statement than saying the forbidden is now permitted. Thus, despite the well intended and well researched arguments of the teshuva to reconcile homosexual behavior with halakhic Judaism - it is thus far the best attempt I have seen - I do not believe the leniency on rabbinic prohibitions can be accepted as halakhically valid or ethically consistent with rabbinic law.

1. For one example, in 1948 CJLS member Rabbi Louis Epstein lamented, "that the Committee is given authority to say, 'Yes' to every question but never to say, 'No.' For such purposes we do not need a committee on Jewish law; a good brush and a pail of whitewash will do" (Proceedings of the Rabbinical Assembly 1949). Also see (B. Hullin 43b-44a).
2. The field of history of halakha is too vast to summarize in a few sentences here, but as a introduction see the collected works of Jacob Katz. For some examples, Rabbis will work to free aggunot or reclassify mamzerim with the a priori intention to be lenient, and the laws of charging interest underwent a great deal of modifications over time usually in response to changing circumstances.
3. See for example R. Soloveitchik on mehitza, R. Hershel Schachter on women's hakafot, and many others. According to Torah, unilaterally creating new prohibitions in texts is just as problematic as eliminating obligations (Deut. 13:1).
4. Igniting fires on Shabbat is explicitly biblically forbidden (Ex. 35:3), however the Talmud adds in order to have biblically violated the Shabbat the act must have been intentional - a "malechet mahshevet" (B. Haggiga 10b, B. Sanhedrin 62b). Tosafot adds that this intention must be to perform the act as it was needed in the mishkah (Tosafot B. Shabbat 94a sv. R. Shimon Poter). The Conservative teshuva argues that fire in the mishkan was used for either light or heat, whereas combustion in automobiles is used for power. Since the fire in an automobile is qualitatively different than the fires in the mishkan, the authors suggest that according to Tosafot driving would not constitute a malechet mahshevet and as such would only be rabbinically prohibited. The additionally relied on the authorities who defined electricity as being at best a rabbinic prohibition on Shabbat. Regardless of the validity of this argument - both in terms of premise and application - an attempt was made to base the teshuva in traditional sources.
5. Curiously, the Safra is cited in the teshuva, but only in the context of legitimizing lesbianism (10).
6. Note that Abaye is not answered - not even with "kedoshim tihiyu" (Lev. 19:2).
7. It is interesting to note that the teshuva rejects the opinion of Rabbi Steve Greenberg who argued in "Wrestling with God and Man" that homosexuals should be exempt from the prohibition because God created them with desires which contradict Torah (250). as I countered in my review, this logic would ultimately render the entire law irrelevant since every person could claim a predisposition or inclination to violate any given commandment.
8. Also consider that these societies were not Jewish and the Sages still were concerned with facilitating 'arayot. It would not be unwarranted to apply a kal v'homer regarding facilitating 'arayot within the Jewish community.
9. Many thanks to Rabbi David Polsky for reminding me of this source's location.