Contents
1 The statement by Masorti Judaism UK
2 Introduction: a consideration of values
3 A summary of the arguments of the Law Committee’s responsa on which the UK Ruling is based
4 The conclusions reached by the rabbis of Masorti Judaism UK, and their ruling
5 What a shutafut ceremony might include (a fuller discussion will follow at a later date)
6 A reflection on the meaning of welcome and inclusion
Endnotes
(1) This document has been kept brief for reasons of clarity, but fuller arguments are given in the endnotes
(2) References in this paper to “The Law Committee” are to the Committee on Jewish Law and Standards of the Conservative Movement in the United States of America.
(3) References listed at the end of this paper include links to the full texts of the Law Committee’s responsa discussed below.
(4)
1 The statement by Masorti Judaism UK
This paper provides the background to the following statement issued by Masorti Judaism UK in October 2014:
After much learning and discussion, the Masorti rabbis have ruled that communities may carry out ceremonies for gay and lesbian couples based on a ‘shutafut,’ or partnership, ceremony. We recognise that our movement encompasses diverse views on this important subject. Each Masorti community, together with its rabbi, will be free to decide whether to carry out these ceremonies and, if so, whether the relationships sanctified by them should be registered under English law as same-sex marriages or civil partnerships. Masorti Judaism is proud to be taking this opportunity to make our communities ever more welcoming and to realise our values of inclusion, equality and diversity within the framework of halakhah (Jewish law).
The rabbis
The Masorti rabbis referred to are: Mijael Even-David, Jeremy Gordon, Rafi Kaiserblueth, Daniella Kolodny, Joel Levy, Chaim Weiner and Jonathan Wittenberg. Their discussions took place over the course of several of their meetings in their capacity as the rabbinical body of Masorti Judaism UK
2. Introduction: a consideration of values
It is a core teaching of Judaism that every person is created in God’s image and deserves to be treated with equality and respect as God’s creation. Some years ago an orthodox gay man spoke about how he felt as he stood before God: ‘Am I, too, made in God’s image? Does God want me as I am?’ If so, he concluded, he had to accept himself for who he was. That struggle for acceptance, before self, parents, peers, community and God has often brought great pain, shame, and deep loneliness to gay people and has driven some to suicide. Judaism has often had a part in that suffering by offering, if not outright rejection, then what has been described as ‘at best a cold welcome’, a response which has been experienced as isolating and cruel.
Attitudes towards homosexuality have changed profoundly, not only in secular society, but also within the Jewish community. One milestone was the film Trembling Before God, which brought the pain and isolation of many gay people to the attention of rabbis and communities of all denominations. [1] It made clear the destructive effects on gay people of blame, rejection or the suggestion that being gay was an illness of which a person could be cured by therapy.
It is thus not only a matter of compassion but of justice to include gay people within the community, without discrimination and with full equality. To welcome another person in this manner also means to accept and respect the relationship formed with the partner together with whom he or she seeks to build a Jewish home, based on a loving, enduring and exclusive relationship. This is especially important at a time when so many Jewish people feel alienated; the Jewish community gains not by driving away but by including those who want to belong.
It cannot be disputed that Judaism, both in the Torah and rabbinic teaching, has understood the ideal human state to be within heterosexual marriage. [2] Yet, for many with a strong commitment to the Torah and its values, there is now a widespread understanding that it cannot be right in the light of our current awareness to exclude from the community people for whom this is not a possibility. [3] There is an appreciation that, since Judaism regards faithful and loving partnership as the surest basis for creating Jewish homes and communities, a way needs to be found not only to sanction but to honour and celebrate the enduring commitment a gay couple may choose to make. From the perspective of the community, it is important, especially in a period of attrition, to support those who wish to create a bayyit ne’eman be’Yisrael, a true and loyal home in the people of Israel.
3. A summary of the arguments of the Responsa of the Law Committee
It was with these concerns in mind, and prompted by the widely publicised debate in Britain following proposed, and later accepted, changes in civil legislation to allow same-sex marriages, that the rabbis of Masorti Judaism UK turned for guidance to the responsa of the Law Committee. In the early 2000’s that committee was asked to consider the key issues concerning the status of gay Jews. [4] The questions placed formally before it were: ‘What guidance does halakhah offer to Jews who are homosexual? Which intimate activities are permitted to them, and which are forbidden? How shall Conservative Judaism relate to gay and lesbian couples?’
The committee spent two years studying, debating and writing; their work included consultations with leading researchers, retreats devoted to the topic and painstaking analysis of the sources of Jewish law. The process led to the preparation of two responsa, both of which were accepted by majority vote on December 6, 2006. After many discussions, the rabbis of Masorti Judaism UK agreed that these decisions should be acceptable in our congregations in Britain and that congregations together with their rabbis should be allowed to choose their own positions on an individual basis within the bounds of what they prohibit and allow. We did not consider that we had the capacity to engage in a similarly searching and extensive process of our own, or that we would arrive at substantially different conclusions from our American colleagues.
3.1 The Dorff, Nevins, Reisner responsum
The following is a synopsis of the key stages in the halakhic argument presented in the responsum authored by Rabbis Dorff, Nevins and Reisner (the link to the full document is given below).
The authors cite the key verses from the Torah, Leviticus 18:22, ‘Do not lie with a man the lyings of a woman; it is abhorrent’; and 20:13, ‘If a man lies with a male the lyings of a woman, the two of them have done an abhorrent thing; they shall be put to death – their bloodguilt is upon them’. The authors note that these verses are almost universally understood to prohibit penetrative sex between men, the latter verse including the receptive partner as well. In upholding this prohibition, the authors conclude that ‘To strike this law from the Torah is a radical step. On the other hand, to expand [it] beyond what is actually written is unnecessarily harsh. The Torah forbids anal sex between men, nothing more, nothing less.’ [5]
The critical stages in the argument now follow. Considering the rabbinic literature on other forms of intimacy, the authors note that Nachmanides categorises them not as de’oraita, that is, Torah-enjoined, but as derabbanan, rabinically-enjoined, prohibitions. This does not of course mean that they should not be taken seriously. The division between de’oraita and derabbanan law is itself a rabbinic distinction and the numerous rules and decrees described by the rabbis as belonging to the latter category form the basis of our Judaism. But understanding a law as derabbanan does allow greater leeway for negotiation between it, other stipulations of Judaism, and practical and ethical concerns. Nevertheless, the authors conclude this section of their argument by acknowledging that ‘the established halakhah presents a comprehensive ban upon homosexual intimacy,’ and that only the most serious considerations should allow a reappraisal of this attitude. The question before them is therefore whether such considerations exist within the domain of Jewish law and ethics.
The authors now turn to the concept of kevod haberiyot, ‘human dignity’, a value on which the Talmud relies in a number of instances to explain why certain rabbinic and even Torah-enjoined rules should be set aside. They argue that since kevod haberiyot is invoked in the Talmud to prove that considerations of human dignity can, in certain circumstances, overcome prohibitions in Jewish law, the principle should be developed and applied to the situation of homosexuals as well. Kevod haberiyot should be understood to include acceptance of and respect for gay people, which entails respect for partnerships formed with the same enduring intentions as those of heterosexual couples. Thus considerations of kevod haberiyot should be allowed to override the rabbinical prohibition on other forms of intimacy, though not the Torah’s explicit ban on penetrative intercourse.
Their conclusions form an essential part of the ruling by the rabbis of Masorti Judaism UK. The relevant sentences are:
Gay and lesbian Jews may form intimate relationships, with the Torah’s explicit prohibition of anal sex between men remaining in force. Commitment ceremonies that avoid the legal mechanisms of kiddushin may be designed for gay and lesbian couples. There is to be no discrimination against gay and lesbian Jews. [6]
3.2 Rabbi Roth’s Responsum
In a strong refutation, Rabbi Joel Roth attacks two key steps in the argument of the Dorff, Nevins, Reisner responsum. Firstly, he argues, even were it the case that the prohibition in Torah law referred only to penetrative sex, an assertion which he challenges, what has so long and so clearly been understood by rabbinical decree as forbidden cannot be overridden, however strong the wish to do so may be. Rabbinically enjoined law is, after all, a central and essential part of Judaism. Secondly, the concept of kevod haberiyot, human dignity, should not be invoked because, he maintains, it is basically applied by the Talmud only to a person’s loss of dignity in the eyes of others, not to the loss of a sense of self-esteem or self-worth in a person’s own eyes, as would be the case for a gay person seeking Judaism’s endorsement of the relationship with his or her partner. Rabbi Roth therefore accuses his colleagues of constructing ‘a tall building on a very shaky foundation’ and of allowing the ends for which they aim to dictate their halakhic argument. [7]
Rabbi Roth concludes by confirming the conclusions of his 1992 responsum, noting that ‘We affirm that gays and lesbians are welcome in our congregations, youth groups, camps and schools’; that they ‘will not be denied any honors within worship and regarding lay leadership positions’ but that Conservative rabbis and cantors may not perform commitment ceremonies for them. (See his responsum in full.) Rabbi Roth’s responsum was approved at the same session as that of Dorff, Nevins and Reisner.
3.3 Critique and Counter-Critique
Rabbi Roth’s argument is critiqued by Rabbi Richie Lewis, like Rabbi Roth a head of the Conservative Yeshivah in Jerusalem. Without declaring his own position on the question of gay relationships, he challenges the assumptions behind Rabbi Roth’s approach. Firstly, he argues that just as there can be no story without a story-teller so there can be no responsum which is not ‘a construction of the posek (the decision-maker)’. Thus every halakhic argument is not only bound to, but should, reflect the way its author understands the key Jewish values involved in the issue. Rabbis Dorff, Nevins and Reisner cannot therefore be blamed in principle for seeking a path through the halakhic material to support their understanding and attitudes.
Secondly, Rabbi Lewis critiques what he calls Rabbi Roth’s “context-less” approach to textual interpretation’, arguing that ‘every text came into being in some context or other and every author is conditioned by the givens of the context in which he lived and wrote’. Thus it is not only legitimate, but necessary, to consider the meanings of the concepts underlying any halakhic argument in their historical and social contexts. The issue here is therefore not simply “What did ‘human dignity’ mean to the rabbis of the Talmud?” but also “What should ‘human dignity’ mean to us today?” [8] Hence, without commenting on its decisions, he upholds the key aspects of the methodology of the Dorff, Nevins, Reisner responsum.
Rabbi Lewis’s comments take us to an essential issue in the Masorti approach to Judaism, the impact of history on text and tradition. Once it is accepted that the Torah is sacred and constitutes ‘God’s word’ yet nevertheless reflects its social, moral, historical and legal contexts, then we cannot divorce our understanding of God’s will from the impact those contexts may have had on the human interpretation of what that will should be. [9] It is precisely this difficult path between faithfulness towards tradition and the impact of changing realities and values which the halakhic process has to tread. Such an appreciation does not of itself make the responsum by Rabbis Dorff, Nevins and Reisner compelling, but it does show how it can be read as creative and courageous within the terms of halakhic argument.
3.4 The ruling by the Law Committee
The Law Committee voted in favour of both responsa. They thus allowed rabbis and communities to make their own choice between the different positions taken by them on same-sex partnership ceremonies.
4. The conclusions reached by the rabbis of Masorti Judaism UK and their ruling
The rabbis of Masorti Judaism UK endorse the position of their American colleagues. They thus rule ‘that communities may carry out ceremonies for gay and lesbian couples based on a ‘shutafut,’ or partnership, ceremony.’ Those who choose to do so will rely in full on the conclusions of the responsum by Rabbis Dorff, Nevins and Reisner, including both what it permits and what it prohibits. Again, the relevant sentences are
Gay and lesbian Jews may form intimate relationships, with the Torah’s explicit prohibition of anal sex between men remaining in force. Commitment ceremonies that avoid the legal mechanisms of kiddushin may be designed for gay and lesbian couples. There is to be no discrimination against gay and lesbian Jews.
Those who choose not to conduct shutafut or partnership ceremonies will rely on the responsum of Rabbi Roth.
Since the choice of a shutafut ceremony is permitted, the question needs to be addressed of what such a ceremony might involve.
5. What a shutafut ceremony might include
A shutafut ceremony is based on the same moral, emotional and spiritual premises as the public affirmation of heterosexual monogamous relationships in Judaism through marriage: the commitment to a faithful, enduring, exclusive bond, based on respect, love and the express intention to establish a Jewish home and live according to Jewish values and practice. As already noted, it is founded on the wish to create a bayit ne’eman be’Yisrael, a true home in the People of Israel. It is at heart a celebration of this commitment before friends, community and God. It marks a sacred bond.
It differs clearly from the kinyan and kiddushin, or ‘acquisition’, model which forms the basis of the traditional Jewish wedding ceremony. In the words of Rabbi Joel Levy, it is ‘rooted in the Jewish law of partnership, shutafut, rather than the law of acquisition. The central act of such a ceremony replaces the kinyan (‘acquiring’) of kiddushin, where the man gives an object of value to the woman, with a ceremony where each partner places an object of value into a bag which they then raise together, thereby indicating that they enter into a joint partnership. The terms of their contract are detailed in a “Covenant of Love”, one of the terms of which must be a promise of mutual sexual fidelity.’ [10]
A shutafut ceremony may include the symbols, songs and blessings which mark the creation of a loving and committed Jewish home. It is a joyous and sacred occasion, to be celebrated with wine and food, music, Torah and tsedakah.
The rabbis of Masorti Judaism UK intend to hold further discussions as to the full details of the shutafut ceremony, after which a further short paper will be circulated.
6. A reflection on the meaning of welcome and inclusion
In a recent conversation a gay man explained that ‘the most painful thing is silence, the refusal to address the issue’. The position adopted by the rabbis of Masorti Judaism UK attempts to find paths through that silence which are considerate, sensitive, respectful of Jewish law and true to the Jewish principles of justice, compassion and human dignity. As Rabbi Jeremy Gordon writes, ‘I believe the desire to stand before God, families and friends and, in the name of a shared Jewish tradition, commit to a particular kind of loving bond, is rooted very deeply.’
The shutafut ceremony offers the opportunity to celebrate such commitments in a way which reflects awareness of Jewish tradition and faithfulness to Jewish values. By including those who want to create committed Jewish homes and who have for so long felt rejected, we believe we will also strengthen the Jewish community, the enduring vitality of which is rooted in faithful partnerships and close families whose lives express Jewish practice, learning, values and devotion.
End Notes
- Sandi Simcha Dubowski’s film Trembling Before God was first shown in 2001
- One of the reasons advanced for this through the ages is that the commandment to ‘be fruitful and multiply’ can be fulfilled through heterosexual relationships only. This requires two qualifications. Firstly, it has always been understood in Judaism that the purpose of marriage is also, if not more so, companionship and mutual support. Secondly, though the process is of course different, gay couples can and do raise children in happy and secure homes.
It is worth noting that Rabbi Chaim Rappoport writes in his important study of the issue from a strictly orthodox point of view that ‘it is reasonable to believe that a faithful Jew has no cause to reject the current appreciation of an exclusive homosexual orientation – developed by nature or nurture – as indicated by so much empirical, scientific and psychological evidence’ (Judaism and Homosexuality: An Authentic Orthodox View, p. 20). This is indeed central to his argument, in which he maintains that what the Torah forbids is not being homosexual, but the homosexual act. He emphasises how Judaism demands of a gay person something it asks of no one else, celibacy, since, in his view, he or she is offered no possibility of intimacy within the sanction of Jewish law. He repeatedly stresses that the response this should elicit from the Jewish community is not homophobia but understanding and support.
- The Committee had previously considered the question in 1992, when Rabbi Joel Roth wrote a responsum ruling that, while gay people were in no way to be excluded from the community, Judaism asked them to remain celibate. The fact that the question came before the Committee for a second time within little more than a decade also indicates that the 1992 decision did not provide what was felt to be an acceptable and workable response to the real concerns of the community.
- Steven Greenberg, a modern orthodox rabbi, describes how during the Torah reading on Yom Kippur afternoon, when Leviticus 18 is read, he would stand and weep. Concerning being gay within the orthodox community, he writes: ‘The third option is to stay and tell the truth. To stay and tell the truth means to remain committed to the fulfilment and the study of the Torah while accepting and even celebrating one’s gayness. It means being generally honest about who one is, patient with those who do not yet understand, and ready to get on with the business of finding a life partner and building a Jewish home. This is surely a religious path, and despite its apparent disobedience to certain religious norms, it is in my view the most faithful.’ (Wrestling with God and Men, p. 239)
- An approach which has often been taken is to contextualise the verses. Hence, they are understood as referring to sex as part of an idolatrous cult, or to sex between non-equals, or to coercive sex. These practices were indeed part of the Graeco-Roman world against which rabbinic culture and its values were formed, aspects of which rabbinic Judaism strongly rejected. Those who argue against such an interpretative approach note that the Torah itself offers no indication that the verses should be confined to such, or to any other, limiting contexts.
- The full text of the ruling, which also covers other issues is:
Our practical rulings: Gay and lesbian Jews may form intimate relationships, with the Torah’s explicit prohibition of anal sex between men remaining in force. Bisexuals with primary sexual desires for someone of the opposite sex should seek to create a faithful heterosexual marriage with another Jew. Commitment ceremonies that avoid the legal mechanisms of kiddushin may be designed for gay and lesbian couples. There is to be no discrimination against gay and lesbian Jews. Should they exhibit the other criteria needed for ordination as clergy, they shall be qualified to serve as rabbis, cantors and Jewish educators.
- As the process of preparation of both responsa was fully open, each of them carries refutations of its opponents’ arguments. For further consideration, see the full texts of the responsa.
- This is similar to the argument made by Rabbi Louis Jacobs (though not in the context of gay relationships, which he certainly did not sanction) in a Tree of Life, in which he maintains that serious Jewish law has always developed not only in its legal but also within a social, economic, moral and intellectual context, and that halakhists often knew what the decision had to be before they commenced constructing their arguments.
- This issue constitutes the very essence of ‘the Jacobs Affair’. From We Have Reason To Believe onwards, Rabbi Jacobs argues that the Torah is not a text which ‘dropped from Heaven’ and thus expresses the immutable will of God beyond all human historical, legal or social context, but is a revelation not just ‘to’ but also ‘through’ human beings. Torah is thus ‘the constant interaction of the divine with the human. That the Torah contains a divine element no religious supernaturalist will wish to deny. But the human element, too, is quite obviously present’. (God, Torah, Israel, p. 33) Contextualisation and interpretation are therefore inevitable. Hence Rabbi Jacobs argues in A Tree Of Life that Jewish law has always involved not in a vacuum, but in dynamic relationship with changing social, economic, legal, intellectual and moral realities.
- In her ground-breaking book Engendering Judaism, Rachel Adler includes a full discussion of shutafut ceremonies.
References
The key responsa referred to above can be found online at
and
Other works referred to are:
Richie Lewis: CJLS Teshuvot on Homosexual Themes (unpublished)
Rachel Adler: Engendering Judaism (Beacon Press, Boston1999)
Steven Greenberg: Wrestling with God & Men: Homosexuality in the Jewish Tradition (The University of Wisconsin Press, 2004)
Louis Jacobs: God, Torah, Israel, (Hebrew Union College Press, Cincinnati, 1990)
Chaim Rapoport: Judaism and Homosexuality: An Authentic Orthodox View (Vallentine Mitchell, London, Portland Oregon, 2004)
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