Male Homosexuality - What Are the Halachic Issues?

I am going to begin by diving straight into the Halachic heart of this issue.  In this post I am going to list what the potential prohibitions are in the halachic literature that pertain to male homosexual acts.  At this point, I am going to focus on rules and prohibitions.  It is going to be a long list of "do-nots".  It is crucial for our discussion that we begin with the potential problems.  We can then discuss the various halachic attempts at mitigating these apparent prohibitions.

I apologize in advance for the harshness of this post, I know that it will sound like a sanctimonious attempt at telling other people what they should not do.  That is not my intention.  Quite the contrary, my intention is to lay the foundations of our discussion.  This way, when we attempt to find real solutions they will not be shallow and fake.  Without acknowledging a problem first, one cannot seriously attempt to find genuine solutions. However, allow me to introduce some reading material first.

There are two books, both written by Orthodox Rabbis, that have had significant influence on the discussion of male homosexuality in the Orthodox world.  In virtually all of the ensuing discussion in the Orthodox Jewish world, these two books have loomed large in the background.  Not much has changed in the halachic discussions of homosexuality since these two books have been published.  I am therefore introducing you to both in the beginning of this blog series.  In some cases I will directly use them as source material, sometimes I will agree with their positions, and in other cases I will disagree.

One of the books, is "Wrestling With God and Men", written by Rabbi Steven Greenberg and published in 2004.  For the most part, this book's most important conclusions have not been accepted by Halachic authorities.  We will understand why as we continue with this series.  Despite the fact that his conclusions have mostly been considered outside the halachic pale, his ideas have most certainly been a huge influence on almost everyone who discusses the subject.  This is true whether they admit it or not (in most cases, not).  The book contains a wealth of fascinating material and at least some of his ideas have staying power.

The second book has most certainly become accepted in the majority of the halachic world.  This is the book by Rabbi Chaim Rapaport, published in 2003 with the title, "Judaism and Homosexuality".  This book makes halachic conclusions that are definitely within the halachic pale.  The book was groundbreaking, primarily because he was one of the first Orthodox rabbis to seriously take into account the developments of modern science in the understanding of human sexual orientation.  Rabbi Rapaport deserves a lot of credit for basing his book on actual science rather than on centuries of misunderstanding and bias.  His book has been incredibly influential, though it still may not have penetrated into the deepest corners of the Chareidi world.  He also had the unique experience of someone who has counselled personally many people and families within Orthodoxy who were struggling with these issues.  He reacted with compassion, and then wrote his book.

Of course, there have been many people that have written on the intersection between male homosexuality and Halachah since 2004.  However, there have been only a very few original ideas proposed that haven't already been presented in these two books. Therefore, these books remain the "must-reads" on this subject.  

Now I can begin with a list of the potential halachic issues that relate to male homosexuality.  Bear in mind that halachic rules regulate behavior, not identities, dispositions or orientations, sexual or otherwise.  Each one of these will be subjected to more rigorous analysis in future posts. Broadly, the issues can be divided into two categories:

1. Halachic rules that apply to the gay man himself and his behavior (i.e.what he may or may not be allowed to do)
2. Guidelines that relate to how we as a community should or shouldn't engage with gay men 

In this post I will begin with the first category. This is a list of four halachot that may pertain to homosexual men.  A full analysis of the scope and nature of each one will follow in future posts.

Halachic Issue # 1  Sexual Intercourse Between Males

There are two well-known verses in Leviticus that are clear prohibitions related to homosexuality.  The first is Leviticus 18:22 (translation from Sefaria.org):

Do not lie with a male as one lies with a woman; it is an abhorrence (a "To'evah")

The second verse is Leviticus 20:13:

If a man lies with a male as one lies with a woman, the two of them have done an abhorrent thing ("To'evah Asu") ; they shall be put to death—their bloodguilt is upon them

There are two terms used in both of these verses that stand out conspicuously.  The first is the comparison to "lying" with a man as with a woman, and the second is the use of the term "to'evah".  The translation of to'evah that I quoted, abhorrence, was from Sefaria.org, and most translations use similar language.  The term "as with a woman" is generally understood in the world of Halachah as penetrative anal intercourse between two men. This would be physically similar to the act of penetration that occurs during vaginal intercourse between a man and a woman.

The Talmud certainly seems to have interpreted the prohibition as an act of intercourse and penetration, here are two sources from the Talmud:

Source One - Yevamot

In Yevamot 53b the Mishna records the rule that any sexual intercourse, whether one penetrates but does not "complete the act" (usually interpreted as ejaculation) or whether one has vaginal or anal intercourse with one of the relationships forbidden by the Torah, that the violater is equally guilty for committing the act prohibited by the Torah.  The mishna makes it clear that it is only penetrative intercourse that is expressly prohibited by these particular prohibitions.  Other sexual acts may be prohibited for other reasons, but the list of forbidden relationships in Leviticus that includes sex between two men is referring to penetrative intercourse alone.

When the Talmud discusses this Mishna on 54b,  we have the following exchange:

Ravina raised before Rava: With regard to one who performs the initial stage of intercourse with another male, what is the halakha? Is it considered to be a forbidden act of homosexual intercourse? The Gemara is puzzled by this dilemma: With regard to a male, it is written explicitly: “You shall not lie with a man as with a woman” (Leviticus 18:22), which indicates that anything considered an act of sexual intercourse with a woman is also considered an act of sexual intercourse with a man.  

It is clear from the above that the Talmud understood that anal intercourse even without ejaculation, is the prohibition of the Torah referred to in the verse above.

Source # 2 - Sanhedrin

The mishna in Sanhedrin 54a, refers to one who is "Bo'el Ha'zachar"  which clearly means one who has intercourse with a male.  "Bi'ah" in all of the talmud is a uphemism that literally means to "come onto" . However there us no question that it is a Talmudic term for sexual penetration. This is made even more clear in the ensuing Talmudic discussion of this mishna:

The phrase “lies with a male” is referring to any male, whether he is an adult man or whether he is a minor boy. The phrase “as with a woman [mishkevei isha],” referring to lying with a woman, appears in the plural. The verse teaches you that there are two manners of lying with a woman for which one who engages in intercourse with a woman forbidden to him is punished, vaginal and anal intercourse.

The Talmud thus derives that just as both vaginal and anal penetration are the forms of intercourse prohibited between males and females (outside of permitted relationships), so too is anal intercourse the type of penetration that is prohibited between two males. 

These two sources are enough to make the point that Chazal assume that the act prohibited by the verse is anal intercourse between men.  The meaning of the phrase "as with a woman" is understood as meaning penetrative anal intercourse between men.

The Rishonim clearly understood it this way as well, and this is how the law became codified in virtually all Halachic literature since the time of the Talmud (see Rambam Mishna Torah Hilchot Issurei Biah 1:14 and many other subsequent Halachic sources).

Halachic Issue # 2 - "Lo Tikrevu" , Other Sexual Activities

What about other non-penetrative sexual practices?  The verse, as we said above, refers specifically to penetrative intercourse. Does that mean that all other sexual activity between to men is permitted?  Not exactly. The Chizkuni, on the verse we quoted above in Levitcus 20:13, states as follows:

Mishkevey Isha (as one lies with a woman) - but this does not refer to general fondling (ma'aseh chiduddin)

The Chizkuni is simply reiterating what we just studied, that the only action prohibited by the verses in Leviticus is penetrative intercourse.   Although not prohibited by the verses in Leviticus we discussed above, the poskim bring another verse in Leviticus 18:6.  The following are the words of the Rambam (Mishneh Torah, Issurrei Biah 21:1:

Anyone who has intercourse with any of the prohibited sexual contacts through the limbs (non penetrative intercourse)or he hugs or kisses in the way of desire and he recieves pleasure from the closeness of flesh recieves lashes based on the Torah, as it states (Leviticus 18:30) Not to commit any of these abominable transgressions etc... and it states (Leviticus 18:6) you shall not come close to revealing the nakedness etc.. This means that one should not even come close to committing acts that can bring one to transgress the prohibition of revealing the nakedness (a euphemism for penetrative intercourse)  

The exact nature of the prohibition referred to by the Rambam is hotly debated by the Rishonim.  We will have to attend to these debates when we discuss the issue in more detail in a later post. 

Halachic Issue # 3 - Hotza'at Zera L'Vatalah "Wasting Seed"

We discussed the prohibition of "wasting seed" at length in our blog before, so I will limit my discussion here. I refer you to the extensive series of posts which began here.  I highly recommend that you read through that series before you draw any conclusions.

If one understands that any extravaginal ejaculation falls under this prohibition, then clearly many homosexual practices between males would be prohibited even if they don't invove penetrative intercourse.  Even according to the conclusions of my analysis, one is left with some questions about homosexual acts between men.  For the most part we concluded that masturbation in the context of a marital relationship or masturbation that occurs occasionally due to sexual stimulation that is non deliberate are not prohibited.  How does or doesn't this apply to homosexual relationships?  We clearly have some work to do.

Halachic Issue # 4 - Marriages Between Same-Gendered Individuals

Another potential Halachic issue related to homosexual relationships is related to the marriage of same-gendered individuals.  The source of this is the following Sifra, in Acharei Mot 8:8:

"Do not do like the actions of the people of Egypt or the people of Canaan  (Leviticus 18:3) One might think that this means that one should not build buildings or plant trees as they do?! the Torah teaches U'Vechukoteihem - and in their ways you shall not go.  I (God) only spoke negatively of the ways (chukim) that have been set in place in their societies for them and their ancestors for generations.  and what did they do? A man would marry a man, and a woman would marry a woman, a man would marry a woman and her daughter, and a woman would marry two men, therefore it states "In their ways you shall not go"

This Sifra is often quoted during discussions of gay marriage and Halachah.  It would certainly seem to be prohibiting the consecration of homosexual relationships through marriage.  

As I said above, each of these issues need to be analyzed and taken apart in detail as we explore the Halachic ramifications that may or may not apply to homosexual male relationships.  In my next post, I hope to begin our discussion of the nature and scope of the first Halachic issue, penetrative intercourse between two men.