Is There a Way Out? - Halachic Attempts at Mitigating the Prohibition Against Homosexual Acts

I have always engaged in discussions on this blog with the understanding that Judaism and Halacha are a moral guide for our lives.  Thus, I have focused in this blog on those areas in which there seems to be a conflict between what we know to be "right" and the generally accepted Halacha.  In some cases, I have been more successful than others in my attempt to bridge this gap.  The topic of homosexuality and Halacha has been on my mind for an exceptionally long time, and has been difficult.  I will admit at the outset that I still do not have a great approach that resolves this conflict.  However, I can try to move the Halachic bar a little bit, and maybe plant some seeds that can help us get through this.

Along with the rest of the world, I personally went through many stages of understanding regarding homosexuality.  In my younger years I thought it was some sort of deviant psychological disease, eventually I thought about how it would undermine family life, at times I thought it was immoral and against the Torah, I have been through all that.  It even took me a while to believe the science on the subject until the evidence became more and more overwhelming.  But much more than this, it was through meeting men that are living with being gay in the Orthodox world that I really started to appreciate the challenges they must live with.  

We now know that homosexuals do not choose their orientation, that it cannot be "fixed" by therapy and that such attempts are often dangerous, and that a gay man should not be pushed into living a "normal" life. Such "strategies" would cause untold suffering for all those involved.  We also know that most gay men can and do develop lifelong loving relationships with other men and that sexual attraction and activity is a normal and important part of that relationship.  Just as it is for heterosexuals.  Given all the above, the obvious problem is that although the Torah does not forbid being a homosexual, and does not forbid love between two men, it does prohibit sexual intercourse between two men.  This creates the situation that makes this topic so difficult.  A gay man who desires to remain Orthodox asks the Halachic authorities why he cannot have a fulfilling relationship with a man, just like others can have in heterosexual relationships.  We need a viable answer.

Is it possible to get around the prohibitions that we mentioned in the last post in a halachically valid way? Or is a gay man who wants to remain Orthodox stuck between being celibate or violating a Torah prohibition?  I will now discuss the first Halachic issue from our list in the previous post, that of penetrative intercourse between males. I will discuss the various attempts by poskim and Orthodox scholars to answer the problem I just described and follow the development over the last 50 years or so.

Fix It - It is an Abomination

The first approach is to simply ignore the dilemma I just mentioned.  Prior to the accumulation of all the modern scientific information we now have, it was easier to state that the desire for homosexual sex is simply a desire for a forbidden act or object.  I remember as a young man in yeshiva thinking as follows, if a person has a desire for a married woman, clearly it is his duty to resist such temptations.  So how is that different than telling another man to resist his temptation for a man? 

The poskim that wrote before we understood homosexuality and its origins certainly did see it this way.  At best it was a sinful lust, at worst it was a lust for rebellion against God.  Most famous is the statement of Rav Moshe Feinstein (Iggerot Moshe OC4:115).  I will quote it here in full, based on a translation I found online in a blog called "daattorah".  I will admit that I was just too lazy to translate it myself and this one was already out there.  This statement is important for many reasons.  Primarily it is because this reflects the attitude that people had as recent as the 1970's.  Rav Moshe's words would sound incredibly insensitive and cruel to people today.  But Rav Moshe was anything but insensitive and cruel.  His words simply reflect what people believed in those days; he wrote this in response to a query from someone who asked him for advice on overcoming his homosexual inclinations:

The first thing you need to know is that homosexuality has the severe punishment of stoning and kares and it is also called disgusting by the Torah itself. It is one of the most debased sins and it even is prohibited for non‑Jews. This knowledge is a strong bulwark against the yetzer harah. Secondly it is inexplicable that there should be a lust for it. That is because in the creation of man himself there is no natural lust for homosexuality… The desire for homosexual relations is against natural lust and even the wicked do not have a desire for it itself. Rather their entire desire for it is only because it is something prohibited and the yetzer harah seduces them to rebel against the will of G‑d. This knowledge of what is the will of G‑d is a powerful protection against the yetzer harah. You have already defeated the yetzer harah in that you believe in G‑d and all the 13 principles of faith and the entire Torah. With this you can defeat the yetzer harah in this that it seduces you to rebel against G‑d and to anger Him. There is an explicit verse in HaAzinu “That with abominations they provoke Him to anger” [Devarim 32:16] Rashi says an example is homosexuality which is a sin which causes G‑d’s anger. He also says this regarding magic which interferes with the Heavenly family as is stated in Sanhedrin (67b). Thus the explanation of this verse is that it causes you to deny the decrees of Heaven and to act to anger G‑d – chas veshalom! The third thing is that homosexuality is an embarrassment even to the common man. Because the entire world – even the wicked - ridicule those who are homosexuals. Even in the eyes of the wicked who participate in these acts, he looks down on the one who did it with him and ridicules and insults him. This awareness will greatly strengthen you against the yezter harah. …Awareness of how debasing a sin is, is a good advice to strengthen oneself against the desire to do a sin which is disgusting and ridiculed such as this one. Because not only is it against the Torah which prohibits it with the most severe punishment, but it is also the greatest embarrassment to his whole family. The greatest advice to overcome this is to learn Torah in depth. This will save and guard you from all sins – even from the thoughts of sins as the Rambam states at the end of Hilchos Issurei Bi’ah: “Greater than all this, turn oneself and ones thoughts to words of Torah and expand one’s mind in wisdom.” So surely this will save you from the yetzer harah of this despised sin.

This approach is clear and unambiguous, but also does not consider current science and understanding.  In fact, knowing what we know now, it sounds cruel and insensitive. One cannot hold Rav Feinstein responsible for having ideas and notions that were acceptable in his time, but in our times, we need something quite different. 

Oness - Is a Homosexual Coerced?  

As our knowledge advanced, we learned that indeed some people do have this inclination, but for a long time it was assumed to be a psychological disorder.  This led to another approach in the Halachic world, that of Rabbi Norman Lamm.  In this approach, it is recognized that a homosexual is fundamentally different from a heterosexual, and that he truly cannot control or choose his orientation.  For a time, it was scientifically acceptable to assume that this was some sort of mental illness.  The obvious conclusion was that just like we can treat depression or anxiety, surely there must be a therapy that can fix this person's orientation.  Of course, the fact that psychologists were providing such therapies clearly supported this idea.

The logic of this conclusion leads to another possible avenue to minimize the Halachic sin of sex between men. If this is a mental illness, then we also cannot hold him responsible for his orientation.  Any behavior that he may engage in while he is "sick" could be considered an Oness, i.e., done under duress. This may absolve him of Halachic responsibility for these acts. His only responsibility then would be to get cured, so that he no longer repeats these acts. This approach was first introduced by Rabbi Dr Norman Lamm in an article in Encyclopedia Judaica in 1974.  This was the first attempt at finding a Halachic way out of making a gay man Halachically liable for homosexual intercourse.  You can read the entire article here.   He does not really go all the way and say that a homosexual is not liable for his actions, but he introduces that possibility.  However, the "oness" is based on the assumption that he suffers from a mental disease.  I will post here some excerpts:

This rubric will now permit us to apply the notion of disease (and, from the halakhic point of view, of its opposite, moral culpability) to the various types of sodomy. Clearly, genuine homosexuality experienced under duress (Hebrew:ones) most obviously lends itself to being termed pathological, especially where dysfunction appears in other aspects of the personality. ..... Hence there are types of homosexuality that do not warrant any special considerateness, because the notion of ones or duress (i.e., disease) in no way applies. Where the category of mental illness does apply, the act itself remains to'evah (an abomination), but the fact of illness lays upon us the obligation of pastoral compassion, psychological understanding, and social sympathy. In this sense, homosexuality is no different from any other anti-social or anti-halakhic act, where it is legitimate to distinguish between the objective act itself, including its social and moral consequences, and the mentality and inner development of the person who perpetrates the act.

Rabbi Lamm significantly qualifies this possibility of considering a gay man who engages in sexual intercourse with another man as an oness.  His words and writing also reflect the notions of the time and are not particularly pleasant reading for people who have a more modern understanding of homosexuality.  However, it was a step in the direction of finding a "Halachic way out". 

As our knowledge advanced, and more studies were done, we began to learn that "fixing" the mental "disease" was causing much more harm than good. At best it did not work, while at worst it caused untold suffering. More and more we began to understand that a gay man is simply that, a gay man.  We could not make him change any more than we could train the heterosexuality out of a "straight" man.  This made us search for all sorts of causes for our personal sexual orientations in genetics, culture, family history, personal background, and more.  These searches have taught us much but are beyond the scope of this blog, what matters for our purpose is that homosexuality is not a "choice".

This brings us to Rabbi Rapaport’s book. Until this book was written, it was the position of the overwhelming majority of Orthodox Rabbis that there must be some way to "fix" this orientation.  The Torah cannot possibly ask us to do the impossible.  A person must be able to choose not to be homosexual. The desperate desire for some way out to preserve this understanding led to all sorts of recommendations.  Mostly it led to the support of "reparative" therapies.  To the extent that a rabbi was willing to go with the concept of Oness, they may have been somewhat more or less forgiving of homosexual behavior. But other than that, if therapy failed, it must be the fault of the homosexual for not trying hard enough.

Then came along Rabbi Rapaport who was one of the first Halachic scholars to finally acknowledge that a homosexual is a homosexual, and that reparative therapy is not a real option. He convincingly wrote that encouraging him to marry a woman is a disastrous idea and never recommended. He mentions Rabbi Lamm's possible solution.  Ultimately though, he rejected the idea of applying the principle of Oness.  His two primary reasons for rejecting the idea were: 

1. There is no Halachic precedent for applying Oness to an entire class of people
2. Although a gay man is an Oness in the sense that he cannot control his inclinations, it is difficult to state that in each sexual act he was forced into it and did not have a choice whether to engage in it.

After much handwringing and reconciliation attempts, Rabbi Rapaport eventually settles with the teaching that we indeed do not have a path to mitigate the sin for the homosexual himself.  This is God's word, and we do not always understand it, nor do we understand why certain people are born with certain challenges. Although this may not sound too comforting, it is important to recognize why this book was a major development in the Orthodox world.  He finally removed fault from the discussion of homosexuality in Halacha and argued for compassion and acceptance.

The Lost Child (Tinok Shenishba) Idea

When Rabbi Rapaport rejects the Oness possibility, he leaves the homosexual who desires to keep Halacha without any real recourse other than celibacy.  However, he does help the Orthodox community find a better way to accept homosexuals without judgement and with more compassion.  

The bottom line is that although the sexual act he has engaged in may be prohibited, from the perspective of the community he should still be accepted warmly.  This is because, having been raised in a world where homosexual sex is considered acceptable, the gay man should be seen as if he is a "Tinok Shenishba".  This principle can be applied to anyone who is raised in an environment that erroneously teaches that certain things may be permitted by the Torah.  One cannot blame such a person for thinking that the act he is engaging in is permitted, even if he is wrong.  In the next post, I will review the ideas of Rabbi Greenberg which argue that the Torah really is not prohibiting male to male intercourse for homosexual men.  I will discuss it in detail later, but for now, even if Rabbi Greenberg is wrong, one can assume that the homosexual man who wants to observe Halacha but still engages in sexual activity with men is of the misimpression that this is permitted by the Torah. This is based primarily on the following idea expressed by the Rambam, Hilchot Mamrim 3:3 (Translation from chabad.org):

However the children and the grandchildren of these errants, whose parents have misled them, those who have been born among the Karaites, who have reared them in their views; each is like a child who has been taken captive among them, who has been reared by them, and is not alacritous in seizing the paths of the commandments; his status is comparable to that of one who has been coerced. Even though he later learns that he is a Jew and becomes acquainted with Jews and [the Jewish] religion, he is nevertheless to be regarded as a person who is coerced, for he was reared in the erroneous ways [of his parents]. Thus it is of the children and grandchildren of the karaites who adhere to the practices of their Karaite parents who have erred. Therefore it is proper to cause them to return in repentance and to draw them near with words of peace until they return to the strength-giving Torah

If we can apply this idea to Karaites, why not homosexuals?  In this way Rabbi Rapaport provides the Orthodox community a better and more compassionate way to approach homosexuals.  This is a vast improvement over considering them rebellious sinners (Mumar L'Hachis as per Rav Feinstein) but unfortunately it leaves the homosexual himself without much guidance.

The Oness Pathway Revisited

After the publication of Rabbi Rapaport's book, several Halachic scholars have attempted to revive some of the ideas that he rejected, primarily the concept of Oness.  Many scholars have suggested the possibility of using this category to absolve the homosexual of responsibility for this transgression.  A list of scholars would be superfluous, but I am going to quote one of its' most vocal supporters, Rabbi Zev Farber.  He has been at the forefront of the promotion of this idea and his writings are the most comprehensive.

To read his argument completely, see this link here.   He brings comparisons to forced idol worship and suicide, both of which are Halachic categories in which the concept of Oness has been applied.  But then he brings an idea that is much more analogous, in which the Halachic authorities have accepted the application of the concept of Oness:

More analogous to the situation of the homosexual is the case recorded in the Talmud (b. Gittin 38a) of a woman who was a partial slave, forbidden to marry either another slave or a free man. Without a religiously acceptable outlet, the woman became exceedingly promiscuous with the local men, and the rabbis forced her master to free her fully so that she could marry. In discussing this case, R. Meshulam Roth (Qol Mevasser 1:25) observes that the woman’s hopeless situation was emotionally intolerable to her, and that her behavior in this case should be considered one of oness. If anything, the situation of Orthodox homosexual Jews who wish to follow halakha is even more intolerable. If they keep this halakha, they have no hope for a loving intimate partnership, ever.

He then continues by countering Rabbi Rapaort's reasons for his rejection of this halachic principle as follows: 

One of the chief arguments put forth against the oness approach, since R. Lamm first suggested it forty years ago, has been that most cases of oness are cases of an action taken under duress at a specific point in time. This would not apply to homosexuals who, like heterosexuals, can certainly control their urges at any given moment, and should be expected to do so. Nevertheless, I believe this is a false comparison.

Urges are controlled by the calming factor of knowing there is an alternative outlet. Unlike heterosexuals, gay Orthodox Jews have no halakhically acceptable outlet for the vital human need for intimate partnership, and never will. This is the key difference between this case of oness and most other cases. One cannot view celibacy as moment by moment abstinence. The oness derives from the cumulative weight of the totality of the moments of a person’s life, an absolutely crushing weight in this case.

Psychologically, gay Orthodox Jews are faced with one of two options: either be sexually active and fragment this transgression from their conscious minds, or be celibate and live with the knowledge that they will never experience a real intimate relationship. I firmly believe that the latter is not really a livable option for most adults, but a debilitating and life-crushing prospect. Advocating for it is an exercise in futility...

It is very worthwhile to review the rest of his argument. He clearly reminds us that this does not mean that the act of homosexual intercourse is permitted by the Torah.  So, the Oness idea remains alive in Halachic discourse even after being rejected by Rabbi Rapaport.   

Can a Person be a "Shoteh" (Mentally Incapacitated) For Only One Thing?

Another Halachic approach has been suggested. This is the idea that a person can be considered completely normal and capable in all areas of life, but in one area he is like a person who cannot control himself.  Just as a person with limited mental capacity is not liable for his acts, so too such a person is not liable for his transgressions in this specific area.  One person who expresses this idea is Dr Alan Jotkowitz, in this blog post here.  While he does not claim to be a halachic scholar, this idea has popped up in other discussions as well.  I choose to quote him because he expresses the idea more clearly and directly. The following is an excerpt, quoting from the Noda B'Yehuda, Or HaYashar 30:

The Noda Bi-Yehudah has suggested that there is a halakhic category called “Shoteh Li-Dvar Echad,” someone mentally incompetent on a single issue. He writes in the context of a responsum on the famous Get of Kleiv case: 

"...A Shoteh Li-Dvar Echad, even if it is not one of the things mentioned in Chagigah, and is not considered a shoteh because he has no signs of those things [mentioned in Chagigah], is not considered a shoteh in general. However, for that thing that disturbs his mind and with which he is obsessed, it is clear that for everything related to that thing he is considered a shoteh. Therefore, mitzvoth related to that thing are not relevant to him, even though for all other mitzvoth he is considered a wise man [and obligated in them]..."

Rabbi Moshe Farbenstein explains, “the Noda Bi-Yehudah has originated a new idea, and writes that a Shoteh Li-Dvar Echad is exempt from individual mitzvoth that relate to his specific condition and is obligated in all other mitzvoth.” Can one extend this idea of the Noda Bi-Yehudah to other areas which are biologically driven but not necessarily considered mental illness (and just to be absolutely clear I am in no way suggesting that homosexuality is a mental illness)? If the basis of the Noda Bi-Yehudah is that someone who cannot prevent his behavior in a specific area is not obligated in mitzvoth related to that area, can one then apply that principle to biologically driven homosexuality? I am aware that this is an enormous intellectual leap but it might play a role in relating halakhically to any rabbinically prohibited acts that might occur in private between homosexuals.Can one perhaps use this approach (or others along these lines) in adapting an inclusivist Orthodox approach towards homosexuality?

As you can see, Dr Jotkowitz immediately begins to apply caveats to his suggestion, such as limiting it to rabbinically prohibited acts.  He continues to recommend caution and defers to halachic authorities to consider his idea.

Still a Prohibited Act

There have been many writers over the last 20 years or so that have addressed these issues.  I have chosen these sources due to the reasons stated above. Everything else I have seen has been some sort of variation of what I listed here.  If you have seen something else or something different, please let me know!  In no way do I mean to suggest that others have not been very influential on this subject.  I do believe that I did a fairly good job so far of summarizing the Halachic attempts at mitigated the prohibition of male to male penetrative intercourse that have been suggested. 

However, all the suggestions we discussed above, still keep in place the basic prohibition of the Torah against male-to-male sexual penetrative intercourse.  They may mitigate the responsibility of the male homosexual for acting on his desires, and they offer the general Orthodox community a more compassionate way to approach homosexuals within their midst, but the bottom-line prohibition remains.  The only attempt to understand the verses of the Torah in a way that would permit such sexuality, is Rabbi Greenberg's suggestion in the book we mentioned in the previous post.  This idea has been expressed in many places and will be the subject of our next post. We still have a lot of work to do.