Sunday, 8 February 2015

Wrestling With God & Man

Leviticus 18:2
With a man you shall not lie as with the lyings of a woman; it is an abomination...

Ibn Ezra, Lev 18:2, referring to Sanhedrin 54a
Lyings – this is in the plural, and it is not appropriate to explain further.

Shulhan Arukh, Even haEzer 20:1:
Whoever copulates with one of the forbidden relations non-genitally [derekh ibarim], or hugged and kissed [them] or enjoyed skin-to-skin contact -- such a person is lashed, and is suspected of forbidden intercourse [arayot].

Rambam MT Hil Isurei Biyah 21:2
Such a person is lashed according to the Torah [lokei min hatorah], for it says (Lev. 18:30): “not to engage in any of the abhorrent practices...” and it says (Lev. 18:6): “None of you shall come near... to uncover nakedness,” that is to say: Do not approach those things that lead to prohibited sexual relations.

Babylonian Talmud Yevamot 76a
Rav Huna says: Women who rub against one another are forbidden from marrying Cohanim.
This is so even according to Rabbi Elazar, who said, ‘An unmarried man who comes upon an unmarried woman without the purpose of making her his wife makes her a zona – a licentious woman. This refers to a man, but when a woman [comes upon another woman] this is general flirtatiousness.’

Rabbi Joel Roth, Homosexuality Revisited 2006 (13 in favour, 8 against, 4 abstaining)
The fact that a decision causes pain does not mean that the decision is immoral. A moral law can have a negative consequence on the lives of people, but we make the judgment that the reasonableness and morality of the law outweigh the hurt done to the individual in such cases. That is the case here.

Roth, Homosexuality 1992 (14, 7, 3)
We may be able to understand when one cannot fulfill the mandate the law imposes, but that does not lead us to the conclusion that the mandate was itself immoral. We have asked whether a moral God could prohibit homosexual behavior even in the hardest of cases. We have answered that He could and that He did.

From Dorff, Nevins & Reisner, CJLS Teshuvah 2006 (13 in favour, 12 against)
People who are not Torah observant have no particular need for a traditional halakhic responsum. But people who are observant and are also gay or lesbian are caught in a terrible dilemma, with no halakhic guidance about the integration of their Jewish identity and their sexual orientation. Our core conviction is that dignity for gay and lesbian Jews – as for heterosexual Jews – results neither from blanket permission nor from blanket prohibition of all sexual activity, but rather from situating it within the matrix of issur vheter, permission and prohibition, which permeates all of Jewish life. Contemporary Jewish law is based upon the legal and moral texts found in the Written and Oral Torah. The Written Torah famously pronounces that “God created humanity in His image” (Genesis 1:27; 9:6), that “It is not good for man to live alone” (Genesis 2:18), that you must “Love your neighbor as yourself” (Leviticus 19:18) and that “God is good to all; His mercies apply to all creatures” (Psalms 145:9). The Oral Torah (Talmud, Midrash and Codes) draws upon these and many other biblical passages to create a system of law that sanctifies the daily lives of those who serve God in truth.

While some readers might conclude from … texts reviewed above that Jewish law imposes a universal and undifferentiated ban on all homosexual intimacy, we must emphasize the nuances found in this literature. The dominant voice of rabbinic interpretation follows Maimonides regarding lesbian intimacy and male homosexual acts other than anal sex as all assur d’oraita, banned by the Bible, albeit indirectly. Yet Nachmanides is convincing in his assertion that this ruling is an asmakhta, a later rabbinic interpolation, for the Bible itself never mentions or prohibits any of these acts.

The halakhic status quo is deeply degrading to gay and lesbian Jews. Quite apart from social and literary trends that have taught contempt for homosexuals, legal norms that either ignore them or cruelly demand the absolute suppression of their libido create an environment of humiliation. At this point it is impossible for responsible poskim to ignore this dynamic.
True, liability for humiliation is generally limited in halakhah to cases where it is intentional, yet given the social ferment surrounding gay rights in recent years, it is difficult to dismiss accusations of intentional indifference to the plight of homosexuals by many religious leaders. This dilemma is a matter of human dignity, and as such it evokes the principle stated dramatically and repeatedly in the Talmud: ‘So great is human dignity that it supersedes a negative commandment of the Torah.’ 

Talmud Brachot 19b
‘Great is human dignity, since it overrides a negative precept of the Torah’. Why should it? Let us apply the rule, ‘There is no wisdom nor understanding nor counsel against the Lord? — Rav ben Shaba explained it before Rav Kahana to refer to the negative [Rabbinic] precepts.

They have buried a body and are returning. There are two ways open to them, one pure the other impure. If he goes by the pure, go with him. If he goes by the impure, go with him. Why? Let us say [‘dignity’]. Rav Abba said this is only regarding a field that there is doubt about whether it is impure, for this is declared impure only by the Rabbis.

C20 Orthodox Responsa Tzitz Eliezer 6:10:3
It is difficult to imagine the magnitude of the embarrassment and unpleasantness caused [to a person of restricted hearing] when he comes among people, in the synagogue, and he is isolated, unable to hear what is going on, unable to respond to those who ask him a question. This produces a concern about kevod ha-beriyot [human dignity]… to which must be added his distress at forgoing public worship and being unable to hear the Torah reading and the responses to Kaddish and Kedusha, etc. This negates the performance of a batch of mitzvot, of lesser and greater importance, and therefore it is preferable to permit the carrying of forbidden items on Shabbat in order to respect kevod ha-beriyot and therefore to permit the deaf person to carry his hearing aid on Shabbat.

From Dorff, Nevins & Reisner, CJLS Teshuvah 2006
We are concerned for the dignity of gay and lesbian Jews not only because we are sympathetic to their dilemma, but also because their humiliation is our humiliation. We wish to welcome them, but we do so in such a forbidding fashion that they are repeatedly humiliated.
It is difficult to imagine a group of Jews whose dignity is more undermined than that of homosexuals, who have to date been told to hide and suppress their sexual orientation, and whose desire to establish a long-term relationship with a beloved friend have been lightly dismissed by Jewish and general society. They have, in effect, been told to walk alone, while the great majority of Jews are expected to walk in pairs and as families. In such a context, where is the dignity of homosexual Jews?

We are aware that the continued biblical ban on anal sex may be extremely difficult for some gay men to observe, and that this ban is in some ways more challenging than the ban on menstrual intimacy for heterosexual couples for 7-14 days per month. However, this responsum provides gay men with other options for sexual intimacy, with full social acceptance in the observant Jewish community, and with a feasible path to a life of Torah observance.

Roth 2006 p. 34
A) In accordance with resolutions of the Rabbinical Assembly and the United Synagogue, we affirm that gays and lesbians are welcome in our congregations, youth groups, camps and schools.
B) Homosexuals will not be denied any honors within worship and regarding lay leadership positions.
C) Members of the Rabbinical Assembly and the Cantors Assembly will not perform commitment ceremonies for gays and lesbians.
D) The Rabbinical and Cantorial schools will not knowingly admit sexually active homosexual students, nor will they be admitted to either the Rabbinical Assembly or the Cantors Assembly. No witch hunts will be instigated against those who are already students or members.
E) Whether sexually active homosexuals may function as teachers and youth leaders in our congregations and schools will be left to the rabbi authorized to make halakhic decisions for a given institution within the Conservative Movement.

Dorff Nevins Reisner 2006 p. 19
1. The explicit biblical ban on anal sex between men remains in effect. Gay men are instructed to refrain from anal sex.
2. Heterosexual marriage between two Jews remains the halakhic ideal. For homosexuals who are incapable of maintaining a heterosexual relationship, the rabbinic prohibitions that have been associated with other gay and lesbian intimate acts are superseded based upon the Talmudic principle of kvod habriot, our obligation to preserve the human dignity of all people.
3. This ruling effectively normalizes the status of gay and lesbian Jews in the Jewish community. Extending the 1992 CJLS consensus statement, gay and lesbian Jews are to be welcomed into our synagogues and other institutions as full members with no restrictions. Furthermore, gay or lesbian Jews who demonstrate the depth of Jewish commitment, knowledge, faith and desire to serve as rabbis, cantors and educators shall be welcomed to apply to our professional schools and associations.118
4. We are not prepared at this juncture to rule upon the halakhic status of gay and lesbian relationships. To do so would require establishing an entirely new institution in Jewish law that treats not only the ceremonies and legal instruments appropriate for creating homosexual unions but also the norms for the dissolution of such unions. This responsum does not provide kiddushin for same-sex couples. Nonetheless, we consider stable, committed, Jewish relationships to be as necessary and beneficial for homosexuals and their families as they are for heterosexuals. Promiscuity is not acceptable for either homosexual or heterosexual relationships. The celebration of such a union is appropriate.

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