A Response to the Roth Tshuvah on Homosexuality
Jay Michaelson
February, 2004
With the Conservative Movement’s Committee on Jewish Law and Standards (CJLS) having reopened the “question of homosexuality,” and with a ‘split decision’ anticipated by some, this paper attempts to review the movement’s current position, the structure of its argument, the interpretive paths it opted not to take, and the nature of its methodology.
The tshuvah by Rabbi Joel Roth endorsed by members of the CJLS in March, 1992 (the “1992 tshuvah”) makes the following argument:
1. Male “homosexuality” is clearly and absolutely prohibited by the Torah and oral law, and female “homosexuality” by the rabbis. The question, then, is whether the reasons for doing so can be discerned and examined.
2. The reasons are unclear, but the word toeva suggests that homosexuality is “unnatural” for humans, which is plausible, and therefore cannot be overturned.
3. Although recent scientific advancements question this premise, they do not completely undermine it. Some even reaffirm it. Therefore, nothing in recent scientific advancement can justify a reversal of the halacha.
Part 1 of this paper shows how the 1992 tshuvah was constrained by an inaccurate and halachically improper linguistic and conceptual framework, and argues moving away from non-halachic terms such as “homosexuality,” away from misleading characterizations of sexuality as a “lifestyle,” and toward a richer understanding of the consequences of the movement’s position on homosexuality. While the end of the 1992 tshuvah did acknowledge the place of halacha l’maaseh, the tshuvah declined to allow the real-world consequences of the movement’s position to influence its reasoning. This refusal, coupled with its (presumably unintentionally) anachronistic and homophobic conceptual framework inherited not from halacha but from contemporary non-Jewish culture, effectively decided the issue before the halachic discussion even began. Most importantly, understanding that “homosexuality” is never discussed by the rabbis and is an anachronistic projection of a concept not invented until the 18th century, invites a more careful reading of the sources supporting the first part of the argument above – namely, that “homosexuality” is clearly and absolutely prohibited by the Torah. The expansion of the Torah’s and Talmud’s narrow prohibitions to include all of “homosexuality” is not supported by the text..
In Part 2, I engage with the next step of the 1992 tshuva’s argument, exploring its understanding of the term toeva. I heavily critique that understanding, which is grounded first in homiletical wordplay and second in internally inconsistent application of pseudo-science. While the 1992 tshuvah make several logically insupportable leaps to say that “homosexuality” is “unnatural,” and that this view is somehow echoed in the Torah, I argue that it is far more plausible to understand male-male ritual sodomy in the context of taboo (perhaps etymologically related to toeva) since we know that it was part of Canaanite idolatrous practice. “Nature” has absolutely nothing to do with it.
Having shown that there is no Torah or Talmudic prohibition on “homosexuality,” only on a particular form of male-male ritual sexual activity, the remainder of this paper touches briefly on three related issues. Part 3 deals with female sexuality, Part 4 with gay marriage, and Part 5 with the 1992 Tshuvah’s use of science.
1.
The first major issues in addressing the question of homosexuality and halacha are threshold issues which must be addressed at the outset, because they shape how we are to proceed. The first and most important is to recognize that ‘homosexuality’ is not a halachic category. We may define the term in a unique way to limit it to male-male sex acts, but that is not the way the term is used today. In fact, one of the greatest shortcomings of the 1992 tshuvah is its carelessness of rhetoric. Several times, the Tshuvah says “male homosexuality is forbidden” or “female homosexuality is forbidden.” This is woefully inaccurate, as will be described in detail below. Therefore, although this paper does attempt to reflect on the “question of homosexuality,” it does so from the position of denying that there is a single question. Men and women fall under completely different halachic categories. Sexual orientation or identity is completely unknown until the modern era. Talking about Talmudic attitudes toward “homosexuality” in general is anachronistic, and harmful to understanding what the Rabbis do say about particular LBGT acts and identities.
The term “homosexuality” was coined by the German-Hungarian Károly Mária Kertbeny in 1869. Before that time, acts of sodomy were regarded in different ways by different cultures. Islamic societies, for example, strongly disapproved of men who played the receptive role in same-sex intercourse, but had no prohibitions on the active role until the 19th century, under the influence of European civilizations. Jewish sources do not tend to differentiate behavior in this way, but it is critical in understanding Leviticus 18 and 20 that they do not use terms such as “homosexuality” either. In progressing from those prohibitions through Maimonides, therefore, it is essential that we understand Maimonides as expanding the earlier prohibitions, not merely interpreting them, and as conflating different prohibitions against different kinds of behavior because of societal pressures in his own cultural context. This linguistic and conceptual precision, as we shall see in much more detail below, has considerable substantive consequences.
The second threshold issue is to understand the relevance of social context to the halachic methodology under discussion. Simply put, our interpretive posture vis-a-vis halachic texts is influenced, heavily, by the conditions the halacha imposes upon the Jewish population. As is well known, rabbis take exceedingly strained readings of texts to establish leniencies, and also to establish new strictures, which they believe are necessary for the well-being (spiritual, psychological, financial) of the Jewish people.
Although the 1992 Tshuvah at times recognizes and condemns persecution against gays and lesbians, these moments seem to have no halachic bearing whatsoever. This is quite bizarre, since in traditional sources the mere discomfort of a particular halachic viewpoint causes the decisor to adopt an alternative. The standards of review, in short, are affected by the hardships that may be caused by a particular reading.
Consequently, in the pages that follow, I will attempt to articulate readings which are “at least defensible” or “internally coherent” or, when I am desperate, “conceivably true.” There are many times when I believe the interpretations below to be more coherent, more defensible, and more true than those offered by the 1992 tshuvah and others. However, even if the interpretations are not such, they may still be halachically preferable because of the intense suffering we now know to be caused by anti-homosexual halachic decisions.
In order to do so, it is important to spend some time building the case that the 1992 tshuvah causes pain, suffering, and death, before moving on to the textual analysis of the Roth tshuvah and its sources.
Suicide is the leading cause of death among gay and lesbian youth nationally.[1] Almost half of gay and lesbian teens state they have attempted suicide more than once; fully 30% of gay youth attempt suicide near the age of 15. 276,000 American teenagers try to kill themselves every year, and it has been estimated that as many as 30% of the completed youth suicides in the United States involve, as contributing factor, confusion over identity and or isolation because of sexual identity. Gays and Lesbians are two to six times more likely to commit suicide than heterosexuals. 28% of Gay and Lesbian youth drop out of school because of discomfort in the school environment. Even in today’s liberalizing climate, geographical and cultural variation maintain the homophobic conditions in which LBGT youth frequently grow up – and, of course, the opprobrium on the part of churches and synagogues maintains that.
There are many closeted gay men and lesbians in key Jewish institutions, including JTS, including in leadership roles. There are thousands more in synagogues and Jewish organizations. The pathology of the closet does great harm both to these individuals, and to klal yisrael. It is unlikely that anyone who has not been closeted himself or herself can truly understand the psychological mutilation this condition causes. Personally, I considered suicide on a regular basis throughout my teens and early twenties. As I have described elsewhere,[2] I pleaded with God, over and over and over again, to make me straight, or to make me stronger. I could not understand why God would do this to me. Rationalizations came and went – I was cut out for a religious life, undistracted by love; this was meant to teach me something – but none of them stuck. (That first one is particularly un-Jewish, as well.) Between the ages of 18 and 28, I had exactly one loving relationship, for about three weeks. Imagine that kind of starvation, consider the permanent effects it has, and think of the deformity of the human soul caused when it punishes the part of it that loves, squelches precisely what should be nurtured.
This experience is not unique to me, of course. In addition to suicidal feelings, repression causes distortion in sexual desires: as recent scandals have shown, closeted gays may be attracted to inappropriate sexual partners, and may act out (God forbid) the violence they feel toward themselves upon other people. Thankfully, I have never been a part of such behavior, on either the perpetrator or victim side. However, I know that it has gone on within some of the Conservative movement’s most cherished institutions, and I know it has happened because of repressed sexuality, because I know the perpetrators personally.
Finally, repression distorts more than just sexual drives. Personally, until I came out – which was a long process, beginning six years ago but ending only three years ago – it was as if I was leading someone else’s life. My career was not what I wanted to do. I could not form intimate relationships with friends or relatives – in fact, I had no idea how distant my relationships were until the last few years. Although I collected certain achievements, I was not ‘connected’ to them. For all my success, I felt as though my entire life was being wasted. As you read these words, there are people being psychologically mutilated – I am choosing these words carefully, based on my own experience – by social forces, of which the Conservative Movement’s position is one. Denying that these pathological distortions of the human soul are a direct consequence of “Judaism’s” position on homosexuality is false consciousness, and not proper halachic process.
The 1992 Tshuvah refuses to use the word “homophobia,” suggesting that it is a contentious or somehow political term. I am reminded of President Reagan’s refusal to say the word “AIDS” until 1987 – that, too, was considered political. And, as the activists from that era told us, silence equals death. But the results of homophobia are not “unhappiness,” as the 1992 Tshuvah calls it, and its constituent elements are indeed irrational, based on fear, and grounded in psychological conflict. The 1992 tshuvah ends up agreeing that homosexuality is probably a psychological disorder, and believes that the label “unnatural” is appropriately applied to it. But the real disorder is homophobia. To not even define that term, to not even explore the possibility that it is the fear of one’s own homosexually-oriented impulses that motivates anti-homosexual legislation and law – that is irresponsible halachic process.
I cannot think of another CJLS-endorsed halachic decision which causes psychological torture. The 1992 tshuvah analogizes this issue to that of a kohen who doesn’t get to serve in the Temple, or to an animal that is decided to be unkosher. This not only bespeaks a lack of sensitivity, which, to give the tshuvah the benefit of the doubt, we may suppose is born of ignorance. It renders the 1992 tshuvah unsupportable, because it is based on a woefully incomplete analysis of halachic context.
No one is asked to sacrifice as much as believing gay Jews. And the sacrifice is impossible. I am on listservs and discussion groups that include tortured, closeted, repressed Jews who still hold to a traditional view of homosexuality. I am confident that if Rabbi Roth honestly engaged with the pain that these Jews are in, he would understand that this is not an issue of preference, or political correctness, but a simple binary choice: either God was wrong to create gay people, or we are wrong to read Leviticus as we do. It is impossible that the Jewish God creates gay people and then requires them to suffer lifelong repression, self-hatred, and psychological mutilation. These are not the netivot shalom that the Torah is supposed to be. There are halachot saying that thorny lulavim are pasul because they cause pain. This reading of Leviticus and the Talmud causes death.[3]
I would demand that every member of the CJLS visit shelters for runaway gay youth, interview gay and lesbian conservative Jews who hid their sexuality because of fear of reprisal, and read some of the copious literature on the pathologies of the closet. They will come to understand that God could not possibly ordain this state of affairs. And they will then understand that, even if a tortured, labored reading is required – which I do not believe to the be the case – then such a reading must be taken in order to accurately understand the core texts of the halacha. To repeat, this is the case not because we are bending over backwards to make people comfortable, but because the consequences of the closet are fundamentally incompatible with foundational principles of Jewish theology and law. We must be getting something wrong.