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.

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.

Homosexuality and Halacha

The subject I am about to begin is another extremely challenging one. Before I begin the halachic discussion, I must mention a few of my limitations and intentions. This is going to be quite different than my previous topics. I will explain why.

First, I am not an expert in the subject of homosexuality. Since I am going to begin with a focus on male homosexuality, my field of medicine does not expose me very often to the direct care of male homosexuals. I am deliberately not going begin this series with an analysis of the entire spectrum of human sexuality. This would be broad indeed, and would include the entire spectrum from exclusive heterosexuals to all of the LGBTQ identifications and beyond. The reason is not because the rest of the spectrum is not important, rather it is because my expertise, in this blog, is Halachic. One of the primary halachic conflicts that relate to sexual orientation arises with male same-sex activity. While there are myriads of other issues that raise potential halachic issues, this is the conflict that is most direct. So, I choose to discuss this first. In later blog series, I plan to cover the halachic issues that relate to lesbian relationships, transgender issues and more. 

I am also not a counselor or therapist that has experience in the counseling of gay men in the Halacha observant community. I am also not a community Rav. I therefore have no experience in helping families of gay men navigate the challenge of remaining integrated with a community that is often hostile to people with a homosexual orientation. 

However, I am a concerned Orthodox Jew, with many male friends who have "come out" and identified themselves as gay, and I am proud to consider them wonderful friends and members of my community. I am also the author of this blog, which is a halachic blog, and my purpose is to understand health care related issues in a halachically valid way. It is therefore very much within my level of expertise to discuss the halachot that are related to homosexuality. 

The issue of male homosexuality in halacha has some strong similarities to some of the other issues I have discussed so far, and some especially significant differences. Those of you that have been following my blog would be familiar with my discussions of organ donation and time of death, abortion, treating gentiles on shabbat, male masturbation, and more. You hopefully are also familiar with the "five principles" of rationalist medical halacha that I wrote in my first post. I suggest that you review those principles here. 

In almost all of the topics I have discussed so far, there has been a recurring theme. That is that throughout the centuries, the halachot have been heavily influenced by the perception of medical reality of the poskim of the time. The concurrent scientific and philosophical understandings of each issue had a heavy influence on the halachic decision-making process. This in turn influenced the development of halacha in subsequent centuries. This theme recurs in the most blatant way with the understanding of human sexual orientation. In this sense, the issue of halacha and homosexuality is like the other issues we have discussed. Our understanding and appreciation of human sexual orientation has changed dramatically within the lifetime of most of the readers of this blog. What was once thought to be a deviant psychological disease, is now understood to be simply a part of a large spectrum of naturally occurring human sexual orientations. 

That is the similarity between this topic and the previously discussed topics. But there is a significant difference as well. The difference lies in the all-encompassing nature of sexual orientation and a person's identity. Whether we like it or not, for better or worse, when a person identifies himself as homosexual the consequences are much more than that he must deal with a few halachic questions. The male identified homosexual must contend with social, communal, familial, religious, and many more issues that unfortunately come along with the territory. Not that it should be that way, but it is that way. 

This is more than a question of whether a certain act is or is not permitted according to Halacha. It will inevitably influence almost every aspect of a person's life within his community. This is true of all communities, but especially true within the Orthodox Jewish community. 

I cannot solve all the social and other issues.  However, I can examine the halachic issues there may bee, and how halacha may or may not determine what is or is not acceptable.  

My general plan is to discuss the following issues from a halachic perspective. Please do not hold me accountable to this particular order, and I may add or subtract a few of these topics as my blog develops. 

1. The halachic/legal status of the male homosexual (how his sexual orientation should/shouldn't affect the way he is treated in the community)
2. the halachic prohibitions that may or may not apply to same-sex male sexual activity
3. how the obligation to procreate does/doesn't apply to a male homosexual
4. the halachic status of male same-sex relationships

I have spent the last few months since my last post reading books, articles and other materials related to this topic, and of course studying the various relevant halachic source texts.  This by no means indicates that I know everything.  I therefore urge all of you to feel free to send me any source material that you think might be helpful for me to increase my knowledge and therefore enhance the quality of this blog.  I also urge you of course to comment publicly (preferred) or send me an email offilne if you have any comments, suggestions, disagreements etc.  I publish the overwhelming majority of comments to this blog, even when the opinions expressed are very different from my own.  I will not publish comments though that are rude or abusive in any way.

Wrapping up the "Husband in the Delivery Room" Topic

I would like to wrap up the "Husband in the delivery room" topic and tie up a few loose ends.

First, I have one more item from the list on the Yoatzot website that I need to deal with, which was item #5.  This was in reference to the rabbis who prohibit versus those who permit a husband from being present in the labor room.  Obviously, the reason for those who prohibit is based on their concern for the potential transgressions that we have been discussing in this series. The reasoning for those who permit is because they accept that one can take the precautions mentioned to avoid these transgressions.   

I noted that it seems from the language used by the website, that none of these rabbis actually encouraged the presence of the husband. However, the logical result of the arguments I have presented in this series should now be obvious to readers of this blog. If the husband's presence in the room will provide comfort to his wife and she will feel less anxiety, than it is a mitzvah for him to be there.

A few more comments are now called for. An anonymous commentor has been paying very close attention to my series and has made many helpful comments and criticisms.  In many cases, I was forced to amend and correct some statements that I had made. It is my goal to pursue Truth.  I capitalized the word "Truth" for a reason, as we know that "Chotamo shel HKB'H Emet" - "The seal of God is Truth".  I sincerely appreciate comments that are made with the goal of the pursuit of truth. I am very happy that this anonymous commenter has engaged me in real conversation.  Even if we disagree on some major points.

This blog differs from some other blogs in one fundamental way.  As I am anonymous myself, I completely respect the fact that many people do not want to share their identity.  I actually find that in some cases, anonymity allows people to speak their minds honestly and say things they may not have been willing to say had their identities been known.  Obviously, if one uses anonymity in order to speak dishonestly or in vulgar or demeaning ways, such comments will not be allowed to appear on my blog.  But respectful comments in search of truth will always be welcome, no matter how much they agree or disagree with me.

Two issues must be discussed before I wrap up this subject.

Where does early labor bleeding come from?

Back in my post here, I argued that the bleeding of the early stages of labor is generally from cervical dilation and not uterine blood.  Uterine blood however usually begins in a significant way after the delivery of the baby, and especially with the separation of the placenta.  I therefore argued that even if there is some "bloody show" in labor prior to delivery, we can assume that it is "dam makkah" (non-uterine blood that comes from another known source such as from cervical dilation) and therefore she would not be a Niddah until the delivery of the baby.  At that point, even if there was no bleeding (which is essentially impossible anyway, as there always will be some bleeding) the bleeding would be from a uterine source, as the "opening of the womb" ("petichat haKever") has occurred with the delivery, and she would now have the status of a Niddah (or a "Yoledet", but for our purposes now that is essentially the same thing).

Some obstetricians, (mostly offline or in emails), challenged me by stating that there still could be some bleeding from within the uterus during labor.  They agreed with my basic premise that until delivery most of the bleeding would be attributable to the cervical dilation. They also agreed that unless there was a problem such as a placental abruption, that bleeding from the uterus would likely be a small amount, but it still "could be" that there is some uterine blood.

I responded to this objection by stating that as long as we have a clear "makkah" or "wound" to attribute the bleeding to, and she has a "chezkat tahara" - which means that she is in a known state of purity, we can always assume that the blood is from a cervical source.  She would not be a Niddah until she had definite uterine bleeding, which occurs with delivery.  This is a basic halachic concept, and I stand by this assertion.  The fact that Poskim have assumed that cervical bleeding is not "impure" is well known from the many poskim who assume that bleeding from "stripping  the membranes" or a doctors exam of the cervix is not considered blood of a Niddah.

"Dam Koshi" or "Bleeding Due to Labor" is always considered impure in modern times.

This was a serious objection to my idea that bloody show in early labor does not cause a woman to have the status of a Niddah.  It can get quite complex, so please allow me to summarize as follows.

The Talmud in Niddah 36b discusses the concept of bleeding that occurs as a result of the pain of labor.  It is clear from the discussion of the Talmud that the bleeding under discussion is from a uterine source, and that as a result of labor pain there can be uterine bleeding.  The Talmud therefore has a lengthy discussion regarding the need to determine if this bleeding occurred during her "days of Zivvah" or her "days of Niddah".  In the terminology of the Talmud, uterine blood can be of two major types, "Zivvah" blood, or "Niddah" blood.  How this is determined is dependent generally on timing. There are certain days within which the bleeding is considered "Zivvah" and certain days when it is considered "Niddah".  There is no modern scientific equivalent that can explain what these concepts refer to, so I cannot translate those terms into English. 

One thing is certain though, and that is that both categories of blood are from a uterine source.  The laws of each category are very different, and thus determining whether a woman is in her "Zivah" days or "Niddah" days is halachically important. In modern times we cannot be certain whether bleeding is "Zivvah" or "Niddah", therefore custom has become to be stringent in all cases and assume the worst.  

There is a third possible cause of uterine bleeding, and that is "dam Koshi" or bleeding due to labor. This refers to uterine blood that flows as a result of contractions.  My assumption has been, and remains, that when the Gemara refers to "dam Koshi" the gemara is discussing blood with a uterine source.  This is why the Gemara states that if the labor stops, we then would have to determine if she is a "Niddah" or a "Zavvah".  This only makes sense if we are talking about uterine bleeding. Obviously, if the bleeding was determined to be "Dam Makkah" (blood from a wound), there would be nothing to talk about.  She would be still considered in a state of purity.

The conclusion of the Halacha is that "dam koshi" (which as I just explained is blood of uterine origin) that results from labor, is considered pure if she is in the days of "Zivvah", and impure if she is in the days of "Niddah".  Since in modern times we have no way of differentiating between when a woman is in either state, we assume that she is in the days of "Niddah" and thus uterine bleeding as a result of labor would be considered impure no matter what.  

However, if we know that the likely source of the blood is a makkah, such as from cervical dilation, there would be no reason to assume that the woman is a Niddah at all until the actual birth, from which time she has the impurity of a Yoledet (a woman who gave birth).

I therefore still stand by my assertion that a woman in labor, even if she has bloody show, is not a Niddah.  I do admit that in cases where blood is "flowing", in which cases many doctors would have a suspicion that it may be coming from inside the uterus, that would be considered "Dam Koshi" and we would have to assume that she is a Niddah.  This is because we no longer differentiate between "Niddah" and "Zavvah" nowadays.  I can tell you as an experienced physician myself, that when such cases of "flowing" blood in early labor do occur, we are usually very concerned about the potential for a serious problem called an abruption or other types of obstetric complications.

It seems clear to me that the Talmud is referring to what the rabbis of the Talmud assumed to be uterine bleeding, not "dam makkah".  We now know, through our extensive knowledge of the physiologic process of parturition, that there can be both cervical and uterine sources of bleeding during labor. We also know that in most normal cases, the early bloody show if of cervical, not uterine, origin.  It is exceedingly reasonable to therefore state that Chazal were discussing uterine bleeding, not cervical.  The terms that the Talmud uses, such as "shefa", denote a flow of blood, which is very different than what most women experience.   One can say this regardless of your opinion regarding the much-debated issue of Chazal's understanding of modern science.  Whether you believe in the infallibility of Chazal regarding scientific issues, or whether you believe that Chazal's expertise in science was limited to the science of their contemporaries, this explanation remains the most coherent and understandable reading of the Talmudic discussions.

Allow me to summarize my conclusions in this series, so that I can move on to the next topic.

1. A husband should be encouraged to be there for the support of his wife in the delivery room, if his wife feels comforted by his presence.
2. A woman is not a Niddah until the birth of the baby, unless she has a significant flow of bleeding (more than just what is often called "bloody show")
3. Any supportive touch that gives comfort to the woman in labor, can and should be given by a husband to his wife, even if she already has the status of a Niddah
4. What the husband does or does not see should not be a matter of concern when in the delivery room.  Obviously, and it shouldn't be necessary to say this but I will anyway, he should always act in an appropriate, respectful, and modest manner.
5. How a woman dresses and whether or not she wants to use a mirror to help her push, is a decision that should be made by the woman in labor base on whatever she is comfortable with.  What the husband may or may not see should not even enter into the discussion.

I would love suggestions for new topics, you can feel free to send me messages by email or in the comments.