Guest post by Dr. Alan Jotkowitz

Dr. Alan Jotkowitz is Professor of Medicine and Director of the Jakobovits Center for Jewish Medical Ethics, Ben-Gurion University of the Negev and a Senior Physician at Soroka University Medical Center, Beer-Sheva, Israel. This post was written in response to R. Dr. Gidon Rothstein’s recent post here: link.

Introduction

In the course of a relatively brief time, homosexual relationships have gained recognition and acceptance in Western liberal society as completely normal expressions of human love and sexuality. This is manifested by the growing recognition of gay marriage in many American states and European countries and the appearance of openly gay politicians, athletes and celebrities. The reasons for this change in attitude are beyond the scope of this essay but the impact of the devastating AIDS epidemic may have played a significant role in shifting public opinion. This is not the case in many Arab and African countries, where many openly gay citizens live under constant threat and homosexuality is illegal, sometimes even carrying the death penalty. There has likewise been a change in the attitude of many religions towards homosexuality and homosexuals. In many Christian denominations, openly gay individuals can serve as clergy and homosexuals can marry with the Church’s blessing. There has likewise been a change in Jewish attitudes toward homosexuality. Reform and Conservative rabbinical schools now accept gay students and many rabbis perform gay marriages. There has also been a sea change in attitudes towards homosexuality in many Orthodox communities.

Rabbi Moshe Feinstein, expressing a not uncommon opinion, wrote in the 1970s:

To speak of a desire for homosexual intimacy is a contradiction in terms. In essence, the wicked also have no desire for this, rather the desire is only to do something which is forbidden. The evil inclination entices the person to rebel against the will of the Holy One Blessed Be He.[1]

And now witness, for example, the recent public discussion at Yeshiva University on the difficulties of being gay in the Orthodox world and the Statement of Principles with its message of tolerance and respect toward homosexuals, which has been signed by over one hundred Orthodox rabbis.[2] Notwithstanding these changes, many homosexuals would like to be accepted with their families as part of the Orthodox community.

Historical Perspective

As usual, Rabbi Jonathan Sacks has witten profoundly and deeply about the issue of inclusivism, developing a concept of halakhic inclusivism. Based on the work of John Hick, Rabbi Sacks argues that Judaism can take three possible approaches toward preserving Jewish Peoplehood. Exclusivism maintains that only one mode of religious thought and expression is valid and takes rejection of these norms at face value. Inclusivism does not take rejection at face value and seeks to include in the faith community even those whose ideas and actions appear outside of the established norms. Pluralism, on the other hand, maintains that because there are many valid interpretations of religious faith and practice, none can exclude the other. According to Rabbi Sacks, Orthodox Judaism can be inclusive but not pluralistic.[3]

Two classic examples of this inclusive tendency is Rabbi Jacob Ettlinger’s attitude toward public Sabbath desecrators in 19th century Germany and Rabbi Moshe Feinstein’s position on Reform marriages in 20th century America. Each of these great decisors responded to historic changes in their respective communities. The birth of Reform Judaism in Germany threatened to divide the Jewish community and rabbinic leaders faced many new halakhic quandaries in dealing with these new developments. In one precedent-setting example, Rabbi Ettlinger ruled that the children of secular Sabbath desecrators have the halakhic status of a tinok shenishbah (a child brought up among gentiles) and thus are not wholly responsible for their actions. Rabbi Ettlinger expanded the category of tinok shenishbah to include children raised by secular parents because they, too, do not know that what they are doing is forbidden. In order to maintain the unity of the Jewish community, Rabbi Ettlinger broadened the definition of this established halakhic category. According to Rabbi Sacks, this is a classic inclusivist approach.

Likewise, Rabbi Feinstein solved the almost intractable problem of mamzerim among non-Orthodox second marriages by invalidating the original marriage for a variety of technical halakhic reasons and thus avoiding need for a get. This decision was not recognized by many Orthodox decisors but, according to Rabbi Sacks, was driven by inclusivist tendencies of Rabbi Feinstein to maintain Jewish unity. In his own words “It includes individuals by delegitimizing ideologies.”[3]

Is there any halakhic justification that can be found for an inclusivist approach toward homosexuality? At this point, it is crucial to differentiate between someone who identifies as a homosexual and one who performs acts forbidden by Torah law.

R. Norman Lamm, writing in the 1960’s, also attempted to take an inclusivist approach to the issue. He maintains that from an halakhic perspective, one can regard “homosexual deviance as a pathology.” With this understanding, “the warped family background of the genuine homosexual is considered ones, the homosexual act may possibly lay claim to some mitigation by the Halakhah.” However harsh these words might seem to 21st century sensibilities, they must be viewed in the context of their times when many in the psychiatric establishment viewed homosexuality as a mental illness. Following in these sentiments, Rabbi Lamm writes, “regular congregations and other Jewish groups should not hesitate to accord hospitality and membership on an individual basis to those ‘visible’ homosexuals who qualify for the category of the ill.”[4]

Notwithstanding the above, he retains strong moral distaste for homosexuality:

Jail sentences must be abolished for all homosexuals……but the laws must remain on the books but by mutual consent of judiciary and police be unenforced. This approximates to what lawyers call “the chilling effect” and is the nearest one can come to the category so well known in Halakhah, whereby strong disapproval is expressed by affirming a halalakhic prohibition, yet no punishment is mandated. It is a category that bridges the gap between morality and law. In a society where homosexuality is so rampant, and where incarceration is so counterproductive, the hortatory approach may well be a way of formalizing society’s revulsion while avoiding the pitfall in our accepted penology.[4]

This rhetoric is missing from R. Chaim Rappaport’s learned and compassionate treatment of the issue written in 2004. Rabbi Rappaport makes a number of important points:

A plea for understanding of the “struggles of someone who is confronted with desires that are so foreign to him.” “[W]hat makes such hatred particularly deplorable is the fact that people seek to use the teachings of the Torah as an axe with which to grind their personal prejudices. The Torah does not express any hatred or intolerance for homosexuals. By, definition, the Torah-which is described as Torat Chesed, ‘a teaching of loving-kindness’- could not possibly condone intolerance for a person merely because of his or her disposition. On the contrary, Judaism insists that we exhibit greater tolerance and solicitude for those who Divine Providence has presented such formidable challenges.” Homosexual intercourse is forbidden for Jews and Gentiles alike. Yet when counseling homosexuals, it is unrealistic to expect that prohibited behavior should cease immediately. God almighty loves all his children irrespective of their sexual orientation. Jewish homosexuals should be encouraged to participate in every aspect of Jewish life in which they feel able. Rabbi Rapoport maintains that it is probably better that a homosexual does not marry (a woman) and recognizes the difficulty with this position. “The knowledge that one is unable to build a faithful Jewish home is undoubtedly painful for those men in the unenviable situation who desperately want to have children.” He suggests that homosexuals can contribute to the Jewish community in other ways, such as being involved in public causes or in outreach.[5]

Halakhic perspective

Following in the footsteps of Rabbi Lamm’s attempt at an inclusivist approach and with a modern understanding of homosexuality, can there be a new halakhic perspective on the issue. One can certainly argue that there is no such thing as new halakhic perspective because halakhic is unchangeable. However, we have certainly witnessed a progression in the halakhic approach of Rabbi Feinstein to Rabbi Lamm to Rabbi Rapoport. Of course, there is no comparing Rabbi Rapoport to Rabbi Feinstein but one could suggest that each decisor was influenced by the times in which he lived and his interactions with gay Jews.

A modern scientific approach to homosexuality maintains that for most (if not all) homosexuals, change therapy is at best useless and can be harmful. In addition, there is a strong biological and genetic component to the same sex attraction. Psychoanalytical theories of homosexual tendencies due to family conflicts or arrested development have not held up to scientific scrutiny. If this is the case, can halakhah then relate to the homosexual in a different way? Clearly, Rabbi Feinstein’s approach of homosexuality as a willful rebellion against God does not ring true to modern sentiments and while Rabbi Lamm’s view of acting under duress eliminates the punitive aspect, it still maintains that homosexuality is at best a mental illness.

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] [6]

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.” [7]

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?

Sociological Perspective

In the Sephardic community in general and particularly in Israel, there has been little inroads of the Reform or Conservative movements. There are many explanations for this phenomenon but certainly one of them is the tendency of the community to be accepting of non-strictly halakhically observant Jews. Everyone is accepted as a member (with the possible exception of those who intermarry) and are welcomed into the synagogue and to participate in religious rituals and communal celebrations. Historically, this might be due to the fact that Sephardic Jewry was much more comfortable living in relative harmony with its non-Jewish neighbors and faced fewer social pressures mandating a more complete separation. In addition, the secular revolution and the Enlightenment was much less of a challenge in many Sephardic countries.

In post-War America, Orthodoxy was on the run in many communities. With the flight to suburbia in the 1950s, many young Jewish families raised in Orthodox synagogues started joining Reform and Conservative Temples. Many observers predicted the eventual demise of Orthodox Judaism in America. The tide started to turn in the 60’s with the opening of Young Israel’s and modern Orthodox synagogues in many of these communities. In most of these shuls, public desecration of the Shabbat was not tolerated and parking lots were closed on Shabbat, which made it a necessity to live with walking distance. However, on the question of observance of Taharat HaMishpachah, there was an awkward silence. Many Jewish Americans living in the midst of the sexual revolution thought these laws were a relic of the European shtetl with little meaning for them. I do not know how many couples that identified with modern Orthodoxy in the 1950s and 60s kept the laws of Taharat HaMishpachah faithfully but I do know that their observance was not a requirement for entrance into the community. Rabbis certainly preached their importance in individual and pre-marital counseling but they paid little attention to these laws in public forums or sermons. There was a tacit acceptance that what goes on in the bedroom between husband and wife should be addressed privately and modestly. As far as I know, observance of Taharat HaMishpachah was not a litmus test for acceptance into the modern Orthodox community.

Can one make these same arguments for gay couples? Can they be accepted into the community like non-Shabbat observers in the traditional Sephardic community or non-Mikvah goers in the post-War American Modern Orthodox community? The most obvious difference is that a gay couple cannot keep their relationship private if they want full acceptance. In addition, no one has ever suggested that non-Sabbath or non-Mikvah observance is an ideal. Rabbis in both community have worked hard and successfully to change these non-halakhic behaviors.

Beyond the serious halakhic issues involved in accepting gay couples into the Orthodox community, it remains to be seen whether the community can accept new kinds of families made up of same-sex couples and their children. This means welcoming them into our shuls, Shabbat tables and schools and allowing what they do in the bedroom to remain private. This will not be easy because the heterosexual family unit has been the community ideal for thousands of years and is even credited with the miracle of Jewish continuity. The Orthodox community, for the most part, has not been willing to accept the idea of artificial insemination of single women, which is practically free of halakhic problems, because it sees it as a threat to the two parent family. The family with same sex parents raises even more difficulties, both halakhic and theological.

Philosophical Perspective

The twentieth century French Jewish philosopher Emmanuel Levinas is relatively unknown in Modern Orthodox American circles and only slightly more known in Israeli Dati-Leumi circles. This is partly due to the difficulties in approaching his philosophical treatises, even for a native French speaker. They are heavily influenced by his training in phenomenology and continental philosophy and involve his changing use of language and terms. They are almost unapproachable to a non-expert. Levinas also lectured and wrote on Jewish topics and was renowned for his annual Talmudic lecture to the French Jewish intelligentsia. While the impact of the Holocaust on his thought is widely recognized, the impact of Judaism on his thinking is more subtle. He writes:

But its [Jewish thought’s] basic message consists in bringing the meaning of each and every experience back to the ethical relation between men, in appealing to man’s personal responsibility –in which he feels chosen and irreplaceable- in order to bring about a human society in which men are treated as men. The realization of this just society ipso facto involves raising man up into the same society as God.[8]

Levinas is primarily known as a philosopher of ethics: his primary contribution is in the development of the idea of man’s responsibility to the Other. Only by encountering the Other can man realize that he is not alone in the world. Recognition and responsibility toward the Other enables man to attain freedom because it is only in the encounter with the Other that man has real choices or responsibility. Man can act responsibly toward the Other or react with violence and hatred. Ethical behavior becomes possible when the self encounters and is challenged by the Other. Man thus realizes that he is not alone in the world and is challenged by the Other’s presence to act ethically. Levinas frequently alludes to the Biblical formulation to be kind and merciful to the powerless and destitute, such as the widow, stranger and orphan, as an example of ethical responsibility to the Other. In Levinas’ thought, there is no reciprocity to ethical behavior, either because the Other is unable to reciprocate or more fundamentally because it would not then be considered moral behavior. Our freedom to act responsibly does not depend on the actions of others.

According to Ephraim Meir, it is impossible to separate Levinas’ Judaism from his philosophy since it is the role of Judaism to remind philosophy of the unforgettable-the Other. For example:

A first core term that appears throughout Levinas’s entire corpus of writings is the “face” of the Other that confronts me with the demand “Thou shalt not kill” i.e., do not harm your fellow man, but take care of him instead. His face is not a phenomenon, it is inadequate to my idea of it. This “face” orders the I to take into account the Other’s vulnerability, poverty, neediness and suffering. It is authority, resistant to the grasp, urging my responsibility, founding and justifying my freedom, submitting that freedom to judgment. The face is defined as epiphany, for in the face to face relationship infinity is produced.[9]

Not infrequently, Levinas uses his philosophical ideas to explain Biblical or Talmudic passages. For example, he maintains that the responsibility to the Other explains David’s acquiescence to the long-suffering Gibeonites’ request that justice be served for their persecution under Saul.

Levinas expands on this ethics of responsibility in his second major work, Otherwise than Being, and avers that a third party is always present in one’s relationship with the Other. “The relationship with the third party is an incessant correction of the asymmetry of proximity in which the face is looked at’ and as Mole explains [where does the quote begin and end?] “This accounting for the third party would be the foundation of sociality and community…..Needs that arise in the social situations must be satisfied by the law, especially the other person’s demand for justice and responsibility”[10]

In many societies and cultures, the homosexual has always been treated as the quintessential Other. The ethical responsibility of man and society is to treat the homosexual with dignity and respect and to take care of the Other in an encounter between individuals. On a practical level, this would mean accepting them into the community as equals notwithstanding the differences we may have with them. The function of the third party in this encounter is to ensure that their rights are protected by law.

Critique

This essay has tried to argue for an inclusivist approach to gay couples and their families in the Orthodox (or more precisely the Modern Orthodox and Dati-Leumi) community. I am acutely aware that my analysis is open for heavy criticism and I will therefore be the first to do so.

The Torah and rabbinic tradition has had for thousands of years a clear position condemning homosexuality. There is the midrashic tradition that the world was destroyed in the time of Lot because they started writing marriage contracts between men. The greatest halakhic authority of the late twentieth century is crystal clear in his revulsion at homosexuality. If one wants to change this attitude, it must be because one is influenced by non-Torah (Western liberal) values. I argue that there might be room for leniency because of a biological or genetic tendency toward homosexuality. I am acutely aware of the slippery slope argument against this assumption. On some level, all behavior is biological according to modern science and then why not use this argument to justify stealing for someone who has kleptomaniac tendencies or adultery for someone who can’t control himself sexually? I also am aware of the weakness of the halakhic argument to expand Shoteh Li-Dvar Echad to include homosexuality. The Noda Bi-Yehudah was referring to a form of mental illness, not justifying biological tendencies. Notwithstanding all the above, recognizing the validity of same sex families can pose a threat to the traditional notion of what a Jewish family is and to Jewish continuity. To students of Rabbi Soloveitchik, the notion of self-sacrifice is central to the Jewish faith, the eternal lesson of the Akedah. Rabbi Soloveitchik has expressed this idea in relation to human sexuality, as well. While it is incumbent upon heterosexuals to empathize with the struggles and difficulties of homosexuals, what is required of them is a higher level of sacrifice.

If my arguments are fraught with difficulties how does one proceed? We should slowly advance as Orthodox Jews always have, under the guidance of our Talmidei Chachamim and Gedolim, for whom Torah is imprinted in their souls, to develop an authentic and humane Torah perspective.

Conclusions

I have tried to show in this short essay that there are historical, sociological, halakhic and philosophical rationales for making great efforts to create an inclusivist Jewish community. I am aware that there are great dangers to this approach: it has the potential to threaten halakhic integrity and maybe, even more importantly, the foundations of the Jewish family. But this is balanced by the great Jewish values of welcoming the stranger into our communities and compassion for the Other. In the final analysis though, we need to proceed under the guidance of our Torah leaders.

[1] Iggerot Moshe Orach Chaim vol 4 no. 115[2] available at http://www.jewishjournal.com/oy_gay/item/incredible_orthodox_response_to_homosexuality_in_judaism_39100723[3] Jonathan Sacks One People? Tradition, Modernity and Jewish Tradition, The Littman Library of Jewish Civilization: 1993. See in particular chapter 6 Inclusivism.[4] available at http://www.jonahweb.org/sections.php?secId=90[5] Chaim Rapoport, Judaism and Homosexuality: An authentic Torah View, Valentine Mitchell: London 2004.[6] Noda Bi-Yehudah, Or HaYashar 30.[7] available at http://98.131.138.124/articles/MH/MH3.asp[8] quoted in Colin Davis, Levinas: An Introduction, Polity Press: Cambridge 1996 which is an excellent introduction to the work of Levinas.[9] Ephraim Meir, “Judaism and Philosophy: Each Other’s other in Levinas” in Modern Judaism, advanced access publication August 3, 2010.[10] Gary Mole, “Cruel Justice, Responsibility, and Forgiveness: On Levinas’s reading of the Gibbeonites” in Modern Judaism, advanced access publication October 27, 2011.