Does the Torah Actually Prohibit all Homosexual Intercourse?

I apologize for the time lapse between this post and my last one.  Honestly, I have been thinking about and reading about and studying this issue for quite some time.  Since we are about to read the portion of Leviticus this week  in synagogue that is the center of this discussion, I decided it was time to release this post.  I hope that all of my readers are willing to join me on this journey through a very challenging subject.  Those of you that have been following me for the last ten years have learned that this blog is not designed for those people who like to read a rant in which I express an opinion and throw around a few things to support my opinion.  You can go to FaceBook for that.  I will take the time necessary to take apart an issue from beginning to end, even if that takes several years and a lot of work.  More importantly, even if it means finding out that my preconceived ideas were completely wrong. 

We established in previous posts here that the prohibition in Leviticus 18 and 20 prohibits penetrative anal intercourse between two males.  We also wrote that this was how Chazal understood this prohibition, and how it was interpreted by Halachic authorities ever since.  Presumably, this would mean that if two adult men, both of whom are gay, had a consensual, loving, and committed long-term relationship, that sexual intercourse would be forbidden.

In chapter 13 of his book, Rabbi Steven Greenberg presents an analysis of the verses in Vayikra.  Many other scholars have made similar analyses over the years, and I cannot review all of them and their arguments.  I had to pick one, so I picked Rabbi Greenberg.  Very similar ideas were also presented in a famous (or infamous, depending on your perspective) speech given by Rabbi Joseph Dweck in May 2017.  He presented almost the same ideas but stopped short of claiming that we should apply these ideas in practical Halacha.  You can see his lecture here. I will present his basic argument, and then analyze if we can practically apply them and remain within the bounds of accepted Orthodox Halacha. 

I am aware that an exact definition of the term "accepted Orthodox Halacha" is not so easy to find. Please allow me to define it the way I understand it for the purposes of this blog.  Orthodox Halacha means that we interpret the Torah She'beKtav (the written Torah) according to the way that Chazal (the rabbis of the Mishna and Talmud) taught us in the Torah She'be'al Peh (the oral Torah).  If Chazal tell us how to interpret a verse in the Torah and then teach us practical Halacha on that basis, Orthodoxy demands that we follow that interpretation.  While it is true that there are "Shivim Panim La'Torah" (seventy "faces" - potential interpretations) to the Torah, we cannot decide on our own that we can change practical Halacha if it means interpreting a verse in the Torah in a manner expressly different from the way it was interpreted by Chazal. 

I will present Rabbi Greenberg’s argument as a series of points rather than by developing his entire narrative. If you want to see his entire argument, please see his book. These points are meant to read as a progression of arguments and observations leading to a conclusion. The numbering is not random. Forgive me please if I am oversimplifying his ideas. I ask his forgiveness in advance if I misrepresent his ideas, though I do think I do a pretty decent job summarizing them.  My goal is to present what is necessary for the purposes of my halachic discussion on this blog.  

1. In ancient societies, penetrative sex was perpetrated by the powerful against the weak. It was a demonstration of dominance over the weaker or younger party, and it was humiliating. (Such practices still exist of course, for a graphic and contemporary example, think of those prisoners who abuse other prisoners by sexually assaulting them. They are usually not homosexual predators; they are just predators)
2. Sadly, women were considered inferior, and the fact that men penetrate women during intercourse was seen as a way of showing domination. The domination of male over female was an integral part of the institution of marriage in much of the ancient world. 
3. Men who were on the receiving end of such intercourse were looked upon as if they were like women, in the sense that they were inferior and somehow beneath the "dominant" penetrator. In many ways, they were seen as if they had made themselves "like women". This was like willingly accepting an inferior and degraded status.
4. Homosexual relationships, in the sense of two men who were committed to each other in bonds of love and respect were just "not a thing" in those days. 
5. The verses in Leviticus are written in the context of other prohibitions against incest. By its' very definition, incest is an act in which someone abuses the trust that one has in a family member. The vulnerability of someone dependent on his/her family while a family member dominates and degrades the victim, is well understood by modern psychologists. The victim is typically helpless and has nowhere to turn, as the people who are supposed to protect them are the perpetrators. 
6. In this context, it makes sense that the Torah prohibits male/male intercourse as it is degrading to the victim, and even the willing victim is guilty of allowing himself to be degraded in a way unbecoming of God's creation.
7. When the Torah writes that one may not "lie with a man" it was already obvious that the intent was to prohibit penetrative intercourse, as this is what it always means and what it meant in every other verse. 
8. The only reason the Torah needed to add the term "as one lies with a woman" is to tell us that it is this type of denigrative and abusive penetrative sex that is prohibited between males. This would not apply to a loving, consensual, long-term relationship between two homosexual males. 

The attractiveness of accepting this as the reading of the verse is obvious. It would end our conundrum with which I began this blog thread.  It would both leave the prohibition of Leviticus intact, while still allowing for sexual activity between two gay and committed men. But can this be acceptable halachically? Does this violate the rule that we cannot interpret a verse contrary to the interpretation of Chazal when it changes practical Halacha?

I will henceforth refer to the type of intercourse prohibited by the Torah according to rabbi Greenberg as "humiliative", and the type of intercourse that would be permitted as "relationship".

The truth is that this interpretation of the verse feels forced.  I have always read the verse my entire life the standard way and concluded that the Torah prohibits male/male penetrative intercourse, period.  Every time I have read the sugyot in Shas, I assumed that Chazal read it this way as well.  Clearly, the poskim throughout history understood it this way.  I asked myself to play a thought experiment.  What if I had been taught Rabbi Greenberg's interpretation of the verses from childhood, how would I have learned the sugyot in shas?  What if I lived in a society like the one I just described in ancient times?  What if I had always assumed that what God found abhorrent was humiliative intercourse between men? Is it possible that Chazal really also understood it this way, and that if I started with a different idea of the meaning of the verse, maybe I would have read the gemara differently too? 

I am virtually certain that this post will be misunderstood by some readers, so I am going to try to be very clear about what I am about to do in this post:

1. The verses in Leviticus have been understood throughout the Halachic literature to be referring to all types of homosexual male/male penetrative intercourse
2. The poskim read both the Torah and Chazal with the above assumption intact
3. Rabbi Greenberg suggested that the Torah was only referring to humiliative, and not relationship intercourse (my terms, not his)
4. If Chazal interpreted the verse to be referring to all types of male/male intercourse, then we cannot as Orthodox Jews accept Rabbi Greenberg's suggestion, no matter how much we may want to
5. Is it possible that we have read Chazal incorrectly as well? Maybe Chazal also understood the verses to be referring only to humiliative intercourse?
6. If we can demontstrate that the above assumption is even possible, then although Rabbi Greenberg's suggestion certainly goes against many centuries of Halachic understanding, but it isn't completely outside of the Orthodox range of possibilites

The rest of this post will be discussing this one problem only. That is the question of whether it is possible that we have been reading Chazal wrong for all these years.  I am only asking if it is possible, not if it is true or not. There are many other issues that will be dealt with in future posts. Please bear in mind that this will be an exceptionally long journey. I beg the reader to allow me the opportunity to go through this process before you think you know what my conclusions will be. Here goes: 

In our previous discussion, we brought two Talmudic sources, one from Yevamot and one from Sanhedrin, which established that Chazal understood the prohibition of leviticus to be referring to penetrative intercourse between males.  Chazal certainly do not point out this differentiation between two types of male/male intercourse (which I will now refer to as "humiliative" versus "relationship" intercourse).  However, let's assume for the moment that Chazal understood it as a given that the male/male intercourse being prohibited was humiliative, as we described above.

While this may seem surprising to many of us at first, let me present the following analysis of every known reference in the Talmud regarding homosexuality.  I want to see if it is possible that Chazal, when they wrote of this prohibition, only meant humiliative intercourse.  If it is plausible, then Rabbi Greenberg's theory might be able to remain within the bounds of Orthodox halacha.  If not, then no matter how nice his explanation sounds, it cannot be considered acceptable within Orthodoxy.

Berachot 43b

Six things are disgraceful for a Torah scholar: He may not go out perfumed into the marketplace; he may not go out of his house alone at night; he may not go out wearing patched shoes; he may not converse with a woman in the marketplace; he may not recline and participate in a meal in the company of ignoramuses; and he may not be the last to enter the study hall. And some say that he may not take long strides and he may not walk with an upright posture. The Gemara elaborates on the statements of the baraita. He may not go out perfumed into the marketplace; Rabbi Abba, son of Rabbi Ḥiyya bar Abba, said that Rabbi Yoḥanan said: This prohibition only applies in a place where they are suspected of homosexuality. One who goes out into the marketplace perfumed, will arouse suspicion. Rav Sheshet said: We only said this with regard to his clothing that was perfumed, but with regard to his body, it is permitted, as his sweat causes the fragrance to dissipate. Rav Pappa said: In this regard, his hair is considered like his clothing. And some say: His hair is considered like his body.

Based on the context, the reason for the prohibition against a Torah Scholar going out perfumed in the marketplace, is that people may suspect that his intent is to engage in homosexual acts.  One wonders why Chazal were not concerned that he may be suspected of illicit heterosexual acts?  The next prohibition, going out alone at night, is prohibited due to this very same reason. The perfume, however, is by nature meant to attract others.  One might explain, that for someone about to engage in an exploitative activity, such as to hire a prostitute (and presumably to penetrate her sexually and exploit her vulnerability and need for money), which is what one is suspect of going out alone at night, he need not attract attention to himself.  However, if one wants to be receptive and allow another to penetrate him, he will want to make himself attractive by perfuming himself. 

 

This is by no means a definitive proof, but making oneself receptive to intercourse and allowing oneself to be humiliated in such a way (remember that this is how receptive male/male intercourse was viewed in the contemporary society) would be exactly the type of intercourse forbidden by the Torah.  The type of intercourse one attracts by wandering around the marketplace is not the type of loving, consensual intercourse that we are calling relationship intercourse.  So is it at least possible so far that Chazal understood the prohibition against male/male intercourse to be referring only to humiliative intercourse? Yes, so far it is at least possible. 

Kiddushin 82a

MISHNA: A bachelor may not act as a teacher of children, nor may a woman act as a teacher of children. Rabbi Elazar says: Even one who does not have a wife may not act as a teacher of children. Rabbi Yehuda says: A bachelor may not herd cattle, nor may two bachelors sleep with one covering, lest they transgress the prohibition against homosexual intercourse, but the Rabbis permit it. GEMARA: What is the reason that a bachelor may not teach children? If we say it is due to the children themselves, that it is suspected that he may engage in homosexual intercourse with them, but isn’t it taught in a baraita (Tosefta 5:10): They said to Rabbi Yehuda: Jews are not suspected of engaging in homosexual intercourse nor of engaging in intercourse with an animal. Rather, the reason is as follows: A bachelor may not be a teacher of children due to the mothers of the children, who come to the school from time to time, with whom he might sin. Similarly, a woman may not serve as a teacher to children because she may come to be secluded with the fathers of the children. The mishna teaches that Rabbi Elazar says: Even one who does not have a wife may not act as a teacher of children. A dilemma was raised before the students in the study hall: Does Rabbi Elazar mean one who does not have a wife at all, or perhaps he is referring even to one who has a wife, in a circumstance where she is not residing with him? Come and hear: Even one who has a wife but she is not residing with him may not act as a teacher of children. This statement is in accordance with the opinion of Rabbi Elazar and indicates that his restriction applies even if the man is married.

Here we have several important statements which require analysis.  First there is the discussion regarding two men sleeping with the same blanket. Rabbi Yehuda prohibits it, as he is concerned that they may transgress the sin of homosexual intercourse. The Chachamim are not concerned about this, and they allow it. Is Rabbi Yehuda concerned about humiliative intercourse or relationship intercourse? There is no way to prove either way, but it is certainly plausible that Rabbi Yehuda was concerned that one of the men might take advantage of the other and engage in humiliative penetration. So, it remains at least possible that Chazal only prohibited humiliative intercourse.  

The Chachamim were not concerned about this, why? Perhaps it is because humilative intercourse would require that one man subordinate himself to the other and that this is not so likely? Maybe people are not generally suspected of allowing themselves to be abused (at least in situations where is there is no power differential between the two)?  I don't know for sure, but it remains a possibility. 

The second statement is the prohibition of an unmarried person, or according to Rabbi Eliezer even a married man whose wife is not living with him, from being a teacher of children. By its' very definition, this Chazal is discussing a prohibition of humiliative and exploitative sex between an adult and a child. This is obvious and requires no further discussion.  This is definitely prohibited by the Torah according to any reading of the verses. 

Sukkah 29a

The Sages taught that on account of four matters the sun is eclipsed: On account of a president of the court who dies and is not eulogized appropriately, and the eclipse is a type of eulogy by Heaven; on account of a betrothed young woman who screamed in the city that she was being raped and there was no one to rescue her; on account of homosexuality; and on account of two brothers whose blood was spilled as one.

The context of this Gemara would clearly suggest that the homosexuality for which the world is punished is humiliative and exploitative.  The other examples are the rape of a young girl, murder, and disrespect of the dead.  It would certainly fit the pattern if Chazal were discussing humiliative homosexual intercourse. 

Pesachim 91a

Rav Ukva questioned this answer and said to him: Do we make a group that is entirely composed of women? But didn’t we learn in the mishna: We do not make a group for a Paschal lamb that consists of women, slaves, and minors. What, is the mishna not referring to forming a group that is composed exclusively of women by themselves and slaves by themselves and minors by themselves? Rava said to him: No, the mishna is referring only to forming a group that is composed of women and slaves and minors together, but a group composed exclusively of women, or slaves, or minors would be permitted. It is prohibited to form a group containing both women and slaves, due to a concern that it may lead to frivolity. It is prohibited to form a group of minors and slaves, due to a concern that it may lead to promiscuity, i.e., homosexual behavior. 

For starters, slaves (with the obvious exception of children), are the group that in these ancient societies were the most vulnerable to being the recipients of humiliative sexual penetration.  Furthermore, including them in groups specifically with children would put the children at risk in a very vulnerable environment.  This clearly fits the pattern of humiliative intercourse, and thus would support the idea that Chazal considered the prohibition to be that of humiliative intercourse. 

Chulin 92b

Ulla says: These are the thirty mitzvot that the descendants of Noah initially accepted upon themselves; but they fulfill only three of them. One of these three mitzvot is that they do not write a marriage contract for a wedding between two males; although they violate the prohibition against engaging in homosexuality, they are not so brazen as to write a marriage contract as for a regular marriage.

This Gemara is consistent with the Sifra that we quoted in our previous post here.  I will discuss this Gemara in a later post when I discuss the prohibition against marriage between males.  We will get there, but please forgive me for postponing that discussion.

Sanhedrin 54a

On this page there are two discussions that are relevant.  The first is the discussion regarding one who has penetrative intercourse with his father or uncle. There is much discussion back and forth about this in the beginning of this page of Talmud, and since the details are not relevant for this discussion, I refer you to the Talmud for the specific quotes.  What is important for our discussion is the assumption that one who sexually penetrates his male family member violates both the prohibitions of incest AND that of homosexuality.  In all relationships involving incest, modern scholarship has taught us that there is always an exploitation of trust and abuse involved.  While typically the father or uncle is the perpetrator and not the recipient, one can imagine situations in which the son or nephew would be in the position to exploit the older generation.  This certainly is an example of Chazal discussing humiliative intercourse as the type of intercourse prohibited by the Torah. 

The second discussion on this page, is the mishna we quoted in our previous post here.  This Mishna lists together penetrative intercourse with a male human being and with an animal. The context would suggest that we are discussing humiliative and abusive intercourse, similar to that which occurs with an animal who has no ability to choose for herself and is abused by her master.  While obviously this list could simply be listing these two together as they have the same punishment, clearly there is no indication from this Chazal that understood the verse in Leviticus to be referring to relationship intercourse.  If anything, it suggests the opposite. 

Sanhedrin 55a

Rav Aḥadevoi bar Ami asked Rav Sheshet: With regard to one who performs the initial stage of homosexual intercourse on himself, what is the halakha? Is he liable for homosexual intercourse? Rav Sheshet said to him: You disgust me with your question; such an act is not possible.Rav Ashi said: What is your dilemma? With regard to doing so with an erect penis, you cannot find such a case. You can find it only when one performs this act of intercourse with a flaccid penis. And the halakha is subject to a dispute: According to the one who says that a man who engages in intercourse with a flaccid penis, with one of those with whom relations are forbidden, is exempt, as that is not considered intercourse, here too, when one does so to himself, he is exempt. And according to the one who says that he is liable, he is rendered liable here for transgressing two prohibitions according to Rabbi Yishmael; he is rendered liable for engaging in homosexual intercourse actively, and he is rendered liable for engaging in homosexual intercourse passively.

This passage is probably the most difficult one so far to explain according to Rabbi Greenberg's hypothesis.  If indeed Chazal truly understood that the only homosexual intercourse prohibited by the Torah is humiliative, then why prohibit "intercourse" with oneself?  One interesting thing to note about this very strange passage, is that there is no pleasure involved in this act, as the Gemara states that the penis is not erect when this is being done. If this was just a strange form of masturbation, then maybe it would not be prohibited at all by the Torah. So why prohibit this? The answer to this question may lead us to the explanation we are seeking.  Perhaps this is being performed for others in some perverse pornographic presentation? If so, would it not be possible that the person he is humiliating is himself?  If so, then this passage also would not contradict the possibility that Chazal as well understood that the intercourse prohibited by Leviticus is only humiliative intercourse.  

Sanhedrin 73a

MISHNA: And these are the ones who are saved from transgressing even at the cost of their lives; that is to say, these people may be killed so that they do not perform a transgression: One who pursues another to kill him, or pursues a male to sodomize him, or pursues a betrothed young woman to rape her. But with regard to one who pursues an animal to sodomize it, or one who seeks to desecrate Shabbat, or one who is going to engage in idol worship, they are not saved at the cost of their lives.

This mishna clearly is referring to abusive and humiliative penetrative intercourse, by its very definition. Again, their isn't much to discuss here, as one man is chasing another to harm him.  The Mishna openly compares this to rape of a woman and even murder.  

Sanhedrin 58a

“And shall cleave to his wife,” but not to a male; such a relationship is not defined as cleaving. “To his wife,” but not to the wife of another man. “And they shall be one flesh” indicates that he should marry one of those with whom he can become one flesh, i.e., they can bear children together. This excludes domesticated and undomesticated animals, with which one is prohibited from engaging in bestiality, as they do not become one flesh. All these are forbidden to the descendants of Noah.

Here Chazal seem to be suggesting that the mitzvah to marry applies only to (marrying) a woman, and not to a man.  In the context of this statement, it is not referring to the prohibition of adultery or bestiality per se, but it is saying that a relationship of "cleaving" does not happen between men, or between humans and animals, or with another's wife.  In other words, this statement of Chazal is an observation regarding reality.  A meaningful relationship can only occur between a man, and his own wife.   The contradiction here is then one between our modern observation, which is that some men sometimes do "cleave" to one another and form a bond and relationship.  This would go under the category often discussed in Rationalist Judaic circles.  What does one do when a statement of Chazal is contradicted by modern science or by modern experience?  I do not want to go down that "rabbit hole" right now. 

However, if one compares it to the context, the other relationships listed are prohibited relationships.  Does this prove that Chazal viewed all homosexual penetrative intercourse as prohibited by the verses in Leviticus including what we are calling relationship intercourse?  Not really.  Firstly, this verse is not discussing a prohibition, which we mentioned above.  Secondly, this Aggadic observation of Chazal that two men cannot "cleave" to one another and develop a bond may not be true, it may simply be what they believed to be true at the time.  If you are of the school that believes that what I just said is blasphemous (because whatever Chazal stated is 100% true), then I would still argue that a psychological observation about who develops relationships does not necessarily create a Torah prohibition. 

One could argue that Chazal certainly knew of loving and intimate relationships between two men (think of David and Jonathan). However, they still would have illustrated their example of “cleaving” to one another by saying that this is the type of bond that exists between a man and his wife, and not between two men. Rabbi Greenberg’s entire argument depends on the idea that at the time of Chazal, when one mentioned a homosexual relationship between men, the image conjured in the minds of Chazal was that of a humiliative relationship, and not a loving and committed relationship between equals. 

Sanhedrin 82a

Rav then remembered that which he learned through tradition and said: “Judah has dealt treacherously,” this is a reference to the sin of idol worship. And likewise it says: But as a wife who treacherously departs her husband, you have dealt treacherously with Me, house of Israel, says the Lord (Jeremiah 3:20). “And an abomination is committed in Israel and in Jerusalem,” this is a reference to male homosexual intercourse, and likewise it says: “You shall not lie with a man as one lies with a woman; it is an abomination”

The context here, again, is one of rebelliousness and violence.  It continues with a criticism of prostitution, which also fits into the category of abusive crimes.  This is certainly consistent with humiliative homosexual intercourse. 

Yevamot 53b

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.  

We quoted this gemara in an earlier post because the Gemara is clearly defining the prohibited act as one of penetrative intercourse between males.  However, this passage does not indicate to us whether Chazal are discussing humiliative or relationship intercourse.  It could easily be referring to either type. 

Nedarim 51a

Bar Kappara said to Rabbi Yehuda HaNasi at the wedding: What is the meaning of the word to’eva, abomination, used by the Torah to describe homosexual intercourse (see Leviticus 18:22)? Whatever it was that Rabbi Yehuda HaNasi said to bar Kappara in explanation, claiming that this is the meaning of to’eva, bar Kappara refuted it by proving otherwise. Rabbi Yehuda HaNasi said to him: You explain it. Bar Kappara said to him: Let your wife come and pour me a goblet of wine. She came and poured him wine. Bar Kappara then said to Rabbi Yehuda HaNasi: Arise and dance for me, so that I will tell you the meaning of the word: This is what the Merciful One is saying in the Torah in the word to’eva: You are straying after it [to’e ata bah], i.e., after an atypical mate

This sugya is interesting on many levels.  The quotation above is from the translation available on Sefaria.org (as are most of my quotations unless I specifically say otherwise).  On Sefaria, the bold letters are the translation, and the regular letters are filled in to allow the reader to make sense of what he is reading.  The assumption that the word To'eva in the interchange recorded is referring to the word as it is used to describe homosexual intercourse is consistent with the standard commentaries.  But this is by no means necessary.  In fact, it may well be that it is referring to other uses of the same word (such as Devarim 27:15 where it refers to idol worship).  It is quite likely that the Gemara is referring to the widespread use of the word in Tanakh.  If so, Bar Kappara is simply teaching us that the root of the word To'eva, is the Hebrew word to'eh, which means to go astray or to wander.  Thus, the teaching would be that anything that leads one astray or is a fundamental behavior or idea opposed to God's true will as expressed in the Torah is a To'eva.  This would be entirely consistent with the idea that humiliative intercourse is a To'eva. 

Kereitot 3a

The Gemara suggests: And if you would say the entire mishna is in fact in accordance with the opinion of Rabbi Akiva, and with regard to the halakha listed in the first clause he holds in accordance with the opinion of Rabbi Yishmael, that is not tenable, as doesn’t Rabbi Abbahu say: In the case of a male who engages in intercourse with another male, and a male who brings another male upon him to engage in intercourse, according to the statement of Rabbi Yishmael, who derives these prohibitions from two separate verses, from: “And you shall not lie with a man as with a woman” (Leviticus 18:22), and from: “There shall not be a sodomite of the sons of Israel” (Deuteronomy 23:18), which is referring to one who engages in homosexual intercourse passively, one who transgresses both of these prohibitions in a single lapse of awareness is liable to bring two sin offerings

The Sefaria translation translates the Hebrew word "kadesh" as a sodomite.  This is not the best translation.  Most commentators understand a "Kadesh" to be a man who sets himself aside as a receptive male prostitute.  This would be one who humiliates himself by being available for men to penetrate, either for money, or for some cultic practice. This gemara is very consistent with the idea that when the Talmud discusses "mishkav zachar", it is referring to humiliative intercourse. 

I think I have covered the entire Talmud Bavli.  If I left something out please let me know in the comments.

What I have established in this post is this: IF one would assume that Rabbi Greenberg's reading of the verses in Leviticus are correct, and IF one therefore assumes that the Torah differentiates between two categories of male/male intercourse (one forbidden and one permitted), then we have no proof so far from CHAZAL that they understood it any differently.  Chazal could theoretically be interpreted to have understood the verses this way, in concert with the environment within which they lived.  I completely and totally understand that this is not what the poskim understood or thought when they learned those Sugyot in the Gemara.  I absolutely understand that the rishonim and Acharonim did not understand Chazal this way.  However, we cannot say at this point that Rabbi Greenberg's interpretation is against Chazal's. What we can say is that he and those who write similar ideas are interpreting both Chazal and Leviticus very differently from how Poskim throughout the centuries have. But this is no surprise, as they readily would admit this. 

I have deliberately left the discussion of the meaning of Chazal's negative statements regarding marriages between members of the same gender for a later post.  We will get there. 

There are many more halachic issues we identified with male/male intercourse in our previous post.  We must analyze these prohibitions as well.  Lo Tikrevu, Hotza'at zera and some major Halachic disagreements among the Rishonim must be discussed.  For example, is it possible to have an act which can be prohibited or permited based on context alone, while on the surface the act itself is the same? Even if it is possible to claim that Chazal also understood the prohibition of mishkav zachar to be a prohibition against humiliative sex, is it legitimate to negate virtually the entire corpus of post-Talmudic Halachic literature?  Does a situation of great need allow us to do something like that?   

Another area that needs to be mentioned is the oft-quoted claim that, when the need was great, the Rabbis have so frequently found ways to "permit" things that by the Torah should have been prohibited.  These claims often arise when discussing this topic as well. The examples invariably include the use of the "pruzbul" to allow for collecting on debt after the sabbatical year ("shemita"), the use of a "heter iska" to allow for borrowing and lending money with interest, selling chametz for pesach and other cases.  

However, the difference between our case and these other cases should be obvious.  In all of those cases (each one has its own halachic history and rationale) no one ever disputed the plain meaning of the commandement in the Torah.  The meaning of the verses remained as they were understood by Chazal.  Those "loopholes" were created to deal with an extenuating need not by changing our understanding of the Torah, but by finding some legalistic trick to get around the law.  If one wanted to oppose such a law, he/she would state that the rabbinic trick was violating the purpose and intent of the Torah.  That would be a legitimate point to which the rabbis would respond that there was an extenuating circumstance.

Our case is very different though, in that Rabbi Greenberg is claiming that the Torah law itself has been misinterpreted for millenia.  I am suggesting here that if Rabbi Greenberg is claiming that Chazal themselves misinterpreted the verses, than this idea cannot be considered within Orthodox Halachic tradition.  On the other hand, if he is claiming that Chazal also understood it this way, then we can continue the discussion and try to clarify a long list of other issues to see if there is any viability to this suggestion.

I also anticipate that I may have missed some statements in the Bavli that my readers will bring to my attention.  So we still have a very long way to go ... I may dig up some more statements in the Yerushalmi or other Beraitot (Rabbinic statements not in the Mishna) that will need to be explained.  Please feel free to email, or preferably, comment in the comment section if you find any statements that are relevant and I missed.

What is the Torah Talking About? - Pederasty and the Prohibiton in Leviticus

We have clearly established in an earlier blog post here that Chazal and the later Halachic literature has interpreted the verses in Leviticus to be prohibiting penetrative intercourse between two men.  Whenever the Torah commands us to do or not to do something, the question that often follows is "Why".  Even asking the question itself raises important philosophical issues that Jewish thinkers have discussed and debated ever since the Torah was given at Sinai.  These issues include, but are not limited to, the following: 

• Is it appropriate to ask why God commands us anything, or is it better to accept His commands simply because He said so? 
• if you establish the reasoning behind a commandment, can you disobey the commandment when a reason does not apply? 
• Are the commands meant to teach us lessons, and if so, isn't it necessary to understand why God commanded us? 
• Are the reasons behind the commands metaphysical, i.e., do they have effects in a spiritual realm that we cannot ever understand? Or are the reasons very real and understandable within the world in which we live? 

Obviously, Jewish thinkers from time immemorial have taken different positions on this matter.  All the way on the rationalist side, there is Maimonides who teaches that every commandment has a logical and rational reason.  According to Maimonides, knowing and understanding this reason is an important part of understanding the Torah.  Furthermore, Maimonides taught that the mitzvot uplift us and make us and society in general better people and bring us closer to the ideals God wants from us. He devoted a large portion of his famous work, The Guide for the Perplexed, the Moreh Nevuchim to elucidating these reasons (Moreh Nevuchim 3:26):

Note this, and understand it. The repeated assertion of our Sages that there are reasons for all commandments, and the tradition that Solomon knew them, refer to the general purpose of the commandments, and not to the object of every detail. This being the case, I find it convenient to divide the six hundred and thirteen precepts into classes: each class will include many precepts of the same kind, or related to each other by their character. I will [first] explain the reason of each class, and show its undoubted and undisputed object, and then I shall discuss each commandment in the class, and expound its reason. Only very few will be left unexplained, the reason for which I have been unable to trace unto this day. I have also been able to comprehend in some cases even the object of many of the conditions and details as far as these can be discovered. You will hear all this later on. 

The Rambam thus asserts that we can ascertain the reason for each mitzvah, if only we were smart enough and worked hard enough.  While admitting that every detailed Halacha we may never figure out, even those details could be figured out if we only were capable of doing so.  He goes on to fulfill what he fills is the obligation to understand each mitzvah by explaining them in long detail. 

The other extreme are the more mystically inclined Kabbalists and their philosophical forebearers.  The Kabbalists tend to explain the mitzvot based on the spiritual effects of doing mitzvot of worlds and realms that are beyond our physical grasp.  However, even among Jewish philosophers not necessarily influenced by Kabbalah specifically, there exists a stream of thought that would rather explain that Mitzvot are simply God's will. Period.  Most famous of course is the Rabbi Yehuda HaLevi in his famous work, the Kuzari (Kuzari 2:26): 

I do not, by any means, assert that the purpose of the service is the order expounded by me. On the contrary, it entails something more secret and elevated. And I say that it is God's Torah. He who innocently accepts it without scrutiny or argument is better off than he who investigates and analyses. 

He says this after explaining reasons for mitzvot, specifically for the Temple service.  But although he admits that many mitzvot have clear and obvious reasons, accepting them as "God's Torah" is even better than finding reasons. 

This becomes especially relevant when discussing the commandment against intercourse between two men.  In both places where the Torah discusses the prohibition, it is within the context of other forbidden Arayot (sexual relationships).  Virtually all the forbidden relationships have moral and ethical components that make it clearly understandable why they should be prohibited.  A modern reader does not wonder when he reads that incest or adultery is forbidden.  Our moral sensibilities help us understand immediately what is wrong with such things.  The only possible exception is the restriction against Niddah (a menstruating woman) and indeed the literature is full of attempts at explaining why this is prohibited.  The reasons are of course beyond the scope of this blog. 

So what about homosexual intercourse? What is the reason for this prohibition?  will an inquiry into the reasoning of the Torah lead us to an understanding of the prohibition that might be different from the traditional understanding? This search for meaning has led many to understand the verse as referring to a specific type of intercourse that was particularly common in ancient times, and particularly repulsive and abusive. Something that it would make sense for the Torah to prohibit. 

Why Look for the Reason? 

I do need to make something clear.  The suggestion of Rabbi Greenberg and the others who follow om similar paths, is not that we can identify the reason for the Torah's prohibition, and therefore decide on our own when it does not apply.  This is not how Halacha works in Jewish Orthodoxy.  I will not expound on this too much here, as it would take far off course from our current mission.  However, it is the search for the reason for this commandment against homosexual intercourse that led Rabbi Greenberg and others to understand the meaning of the verses in a certain way.  Once they interpret the verse and understand it as saying something specific, it is the Torah itself that is prohibiting only this specific act.  At least according to Rabbi Greenberg and those who advocate similar arguments.    

Before we present his arguments, let me summarize the many reasons that have been proposed over the years in the Halachic literature for the prohibition against homosexual intercourse. Then I will get to the explanation of Rabbi Greenberg.  It is important to note, that only one "explanation" has its roots in the Talmud itself, and the meaning of this passage of the Talmud is not completely clear. The rest of the reasons proposed for the prohibition come from much later rabbinic literature.  The ONLY Talmudic era discussion that comes close to explaining a reason, is the Talmud in Nedarim. 

To'eh Attah Ba

The  gemara in Nedarim 51a says as follows:

Bar Kappara said to Rabbi Yehuda HaNasi at the wedding: What is the meaning of the word to’eva, abomination, used by the Torah to describe homosexual intercourse (see Leviticus 18:22)? Whatever it was that Rabbi Yehuda HaNasi said to bar Kappara in explanation, claiming that this is the meaning of to’eva, bar Kappara refuted it by proving otherwise. Rabbi Yehuda HaNasi said to him: You explain it. Bar Kappara said to him: Let your wife come and pour me a goblet of wine. She came and poured him wine. Bar Kappara then said to Rabbi Yehuda HaNasi: Arise and dance for me, so that I will tell you the meaning of the word: This is what the Merciful One is saying in the Torah in the word to’eva: You are straying after it [to’e ata bah], i.e., after an atypical mate.

The commentaries have many different understandings of this passage, so it is difficult to pinpoint exactly what Bar Kappara meant. The one thing that does seem clear is that there was something difficult about the idea that Torah called homosexual relations "an abomination". Otherwise, Rabbi Yehuda Hanassi would not have had such difficulty explaining it. Clearly, the Talmudic sages did not understand some fundamental about this prohibition and why it was so "abominable". So, they had to look for some other explanation, which Bar Kappara then provided.

The Ran (Rabbi Nissim of Gerona 1320-1376, foremost commentary on Tractate Nedarim) seems to understand that Bar Kappara was commenting on the deviancy of this behavior, that he is abandoning intercourse with a female which is more "normal" and exchanging it for a more "deviant" form of intercourse with a male. Rashi however (it is unclear if the author of "Rashi" on Nedarim is actually the famous Rashi or someone else) seems to explain that it is simply a description of someone who forsakes permissible intercourse (through marriage for example) and then chooses prohibited intercourse instead. The obvious question that arises would be according to Rashi, why did the Torah choose to use the term To'eva specifically in reference to homosexuality. For this reason, most subsequent commentators assume that "To'eh Atta Bah" means that nomosexuality is deviant, or at least different from the norm, as the Ran explained.

We will come back to this gemara later in our discussions.

Non-Procreative - Homosexual sex as "non-productive"

One of the classical explanations found in the rabbinic literature for the prohibition against homosexual intercourse, is that the sex has no positive purpose in procreation. This is because sex in a heterosexual relationship has a "productive" purpose and can produce offspring while homosexual sex cannot. This reason appears in many places, but most prominently in the Sefer Hachinuch (13th century Spain, author unknown) Mitzvah 209:4:

It is from the roots of the commandment [that it is] because God, blessed be He, desired the settling of His world that He created. And therefore He commanded that [men] not destroy their seed with male homosexuality. As it is truly destruction, since there is neither [reproductive] benefit, nor a commandment of [a wife's] appointed time - besides that the matter of this craziness is disgusting and ugly to anyone with intelligence. And it is not fitting for a man who is born for the service of his Creator to become distorted (some have the textual variant, to become repulsive) with these ugly acts. 

This type of reasoning is mentioned often in the rabbinic literature, but it is important to note that it does not appear in the Talmudic or Mishnaic literature. I have seen it quoted from the "Midrash" which has misled some people to think that Chazal wrote about this reasoning. In actuality, the "Midrash" quoted is a "Midrash Lekach Tov". The Midrash Lekach Tov is certainly a legitimate rabbinic source, but it was written by Tuvia ben Eliezer in the 11th century and is therefore from the period of the Rishonim. He does indeed write this reasoning in his commentary to Leviticus 18:22.

Those of you that followed my blog series on masturbation and "wasting seed" would already be familiar with the myriads of situations in which the rabbis not only permit but encourage heterosexual intercourse even when procreation is not involved. It seems that they clearly understood the value of sexual activity between loving partners as something productive in and of itself. This leads one to question the logic of this reasoning. Nonetheless, it appears all over the literature.

It is Disgusting

In the second part of the Sefer HaChinuch I quoted above, and in the quotation from Rav Feinstein I quoted in an earlier post, it becomes clear that many Rabbis simply thought that homosexual sex was wrong for no reason other than that they felt it was "disgusting". The term abomination was therefore very easy for them to understand. I am not going to delve into this body of literature too much, as it is self-explanatory. It is also clear that the Rabbis who held this opinion were heterosexuals themselves, and therefore could not fathom why homosexual activity would be attractive to anyone. I do want to comment that clearly Rabbi Yehuda HaNassi in the story we quoted from Nedarim above, did not feel that way, otherwise it would make no sense that the translation of the word "To'eva" would be such a challenge for him.

In addition, I would very highly recommend that the readers of this blog take a look at Rabbi Greenberg's book, "Wrestling with God and Men" and particularly at chapter 7, "The Queer Middle Ages". In this chapter he quotes poems and writing from numerous Rabbinic greats in which they expressed homosexual longings that are quite intense and explicit. These include some of the greatest poets of Jewish history, many of whom authored much of our liturgy and zemirot. These include Rabbi Moshe ibn Ezra, Rabbi Yehuda HaLevi and many more. While there is no evidence that any of them ever had homosexual intercourse, it is very clear that they did not see it as "disgusting". They clearly saw it as something beautiful. They clearly understood why Rabbi Yehuda HaNassi had such a hard time with the term "To'eva" as it related to homosexuality.

Nonetheless, the "disgusting" argument, or the "abomination" argument, has appeared all over the place in the Rishonim and Acharonim. It is difficult to debate a "reason" that is not stated with any form of logic, and it simply is so because people said so.

Other Reasons

I don't want to spend too much time on all of these, but they deserve some "honorable" mention. Many have argued that homosexual sex in "unnatural" and does not occur in nature. This is a highly dubious claim that is refuted by much evidence from other species. But even if it wasn't refuted by such evidence, it is still questionable. Lots of things we do are "unnatural". We fast on Yom Kippur, and I am not aware of any animal on the planet that deliberately goes hungry. Regardless, this argument pops up quite a bit as well. Other arguments include promiscuity and sexually transmitted infections. These were especially popular in the 1980's. The promiscuity argument though has been mentioned in earlier rabbinic literature as well. This also does not fly in our times when the discussion is about the appropriateness of a loving relationship between two males. Furthermore, promiscuity is certainly not the exclusive domain of homosexuals.

At this point, it is time to move on to an understanding of the verses in Leviticus that leads one to believe that the Torah is speaking of something specific. This will involve some historical analysis, textual analysis, and sociological analysis. I am going to reveal up front, that I personally find these arguments to be quite compelling, in fact I believe them to be at least close to the "Amito shel Torah" - the true meaning of the Torah. However, Orthodox Judaism believes in Torah Sheba'al peh. Fundamentally that means that in Halachic matters, we interpret the meaning of Biblical verses according to the way the Rabbis of the Talmud and Mishna taught us.

This is why we don't eat cheeseburgers, even though the verses teach us about kids in their mother goat's milk. This is why we fast on Yom Kippur instead of whip ourselves. etc. etc. So even if I am convinced that Rabbi Greenberg's interpretation of the verses sounds true to me, I cannot make that the basis of Halachic interpretation unless we can viably and realistically explain that Chazal also understood the pesukim that way. So far, we have seen that Chazal have interpreted that the Torah is prohibiting penetrative intercourse between two males. We have seen that Chazal understood the reasoning of this prohibition to be "To'eh atta bah" but have not really figured out what that means. We have seen that Chazal in the Sifra wrote that the marriage practices of the Egyptians are abominable, as they marry a man to another man, a woman to another woman, and a man to a woman and her daughter, and a woman to two men.

In order for Rabbi Greenberg's ideas to be considered within the acceptable halachic discourse of Orthodoxy, he must do more than give a convincing reading of the pasuk, he must convince us that his reading is at least consistent with the way Chazal understood the prohibition.

I know that it is not fair to mention a critique of Rabbi Greenberg's work before I even begin discussing his ideas.  But I will do it anyway.  Check this review here of Rabbi Greenberg's work written by Rabbi Asher Lopatin, a well known modern Orthodox Rabbi.  Rabbi Lopatin points out the flaw in Rabbi Greenberg's work, in that although sounds really good, it hasn't met the standards of what would be considered Orthodox.

The problem is that many modern Orthodox Rabbis like Rabbi Lopatin would love to be able to endorse these ideas, but they can't because Rabbi Greenberg has still failed to take the step necessary to make his ideas Halachically acceptable. Not that this is his fault, because it is not an easy step to take. I don't know if I will be successful either, but I will try at least to show how it might be done.  The purpose of this blog is to solve these issues by remaining within the bounds of Halachah.  That will always remain my mission, and if it doesn't work, I will just acknowledge that and keep studying.

Sorry for keeping you in suspense.  In the next post we will begin an anlysis of Rabbi Greenberg and those who follow in similar paths.

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.