Wichita State University, Wichita, KS
October 22, 2009
Two preliminary points: The treatment of this topic in recent years is an attempt to find a balance between the need for a legal structure to channel human impulses and the need for a compassionate approach to individuals. As our understandings of homosexuality have developed over the past 50 years, this balance has changed as well. I’ll return to this topic toward the end of my remarks, but here I would like to say that God created homosexuals and must have known what God was doing. The idea that a young person struggling with - not sexual practice, not lifestyle choice, but with
identity – can be made to feel that they are somehow sinful in the eyes of God, is a tragedy, and it costs lives, and it is to the credit of various contemporary religious communities, including large portions of the Jewish community, that they have striven to revise their understandings of God’s will to make a place for lesbians and gay men in their communities.
Second: Like Christianity, Judaism has a lot of different streams which approach issues of belief and practice differently. Although the focus of my remarks will be on a particular interpretive track, this is by no means exhaustive, nor is it to say that queer Jews are looking for progressive legal interpretations to permit them to be who they are. Queer Jews will be so without worrying too much about rabbinic niceties.
Ok. Judaism is an interpretive tradition, by this I mean that, in the Jewish tradition, what is written in the Torah is filtered through an interpretive process consisting of midrash (interpretive story) and halakhah, Jewish law as construed by the rabbinic tradition. The idea that one could just read what the Torah says and take that as a meaningful guide for human behavior is not a Jewish one. For instance, in Leviticus there is a requirement that an obstinate son be taken to the gates of the city and stoned to death. I think it’s fair to say that if this were interpreted as literally as the prohibition against homosexuality has been, there would be a lot of dead teenagers. However, the rabbis interpreted this instruction in such a limiting way – in terms of age, the actual behavior in question, and the process necessary for its implementation – as to legislate it out of existence. And the same is true for many other Levitical laws, particularly the ones that call for the death penalty.
This does not mean that Torah doesn’t mean what it says, but simply that what the Torah says is the beginning of the process, not its end. There’s a midrash on the building of the mishkan, the tabernacle in the desert that I learned from my friend and colleague Rabbi Toba Spitzer, that speaks to this point. Moses asks, how will your great Presence, God, that which the entire world can't contain, fit into the limited physical structure of the mishkan? God's response is, I will diminish My Presence in order to dwell in this space, close to human beings. And the same is true for text. We can't fully understand God's reality or meaning, and all we have are small human spaces in which God's reality is diminished, in order to give us access. To put it another way, our understanding of what God is trying to teach us in a particular verse is conditional, and can change in response to our changed understandings.
The Torah is the product of its time, an attempt by our ancestors to reach for holiness and truth based on their own understandings. The rabbis, who interpreted Torah’s teachings and put them into a legal framework, did the same thing. We know that in each case some of what they wrote is true and enduring, and some of it is limited. It is our job to figure out which is which. So how do we do that?
The verses in question in Leviticus come in the context of all kinds of prohibited sexual relationships, particularly those of family members – father, mother, sister, son’s daughter, daughter’s daughter, daughter in law, brother’s wife, etc etc. There has been a bit of a cottage industry in the past few years of scholarly exploration into exactly why this prohibition was promulgated. One theory is that there was some sort of homosexual cultic practice among the surrounding peoples, and that the Israelites were being warned against participating in that. It may also be part of a general prohibition against non-procreative sexual activity, such as masturbation.
Another interpretation which I find compelling is that the prohibitions in this section of Leviticus have not so much to do with sexual behavior in and of itself but with social relationships – which is to say, property relationships. The laws of inheritance and identity as they are put forward in Torah require knowing, so to speak, who the father is. Unfortunately, this is the basis on much of religion’s historic repression of women, as well as homosexuals. Men were agents, women were property. “Your father’s wife’s nakedness is your father’s nakedness” means that you are transgressing your father’s claim to his wife – the sexual relationship and the property relationship are indistinguishable. So a man lying with a man is against the natural order of things because it would confuse this agent/property relationship. This would be why lesbian relationships are not mentioned in Torah – the powerlessness of the parties poses no threat to the clear understanding of proper social relationships.
But scholarly interpretation alone will not suffice for our purposes here. We must deal also with what the verse has always been taken to mean – how it has been interpreted rabbinically and how that interpretation has been put into action by the Jewish legal tradition known as halakhah. There’s no question that in Orthodox interpretations of halakhah, homosexual behavior is seen as prohibited. This has led to the same kinds of struggles within that community that we have seen in other strict traditions. The Reform movement is not motivated by following Jewish law, so this is not an issue for them – at least not a legal issue.
Where the really interesting process on this issue has taken place is within the Conservative movement in Judaism. The Conservative movement considers itself bound by Jewish law but is willing to be more proactive in its legal interpretations. For the past almost 20 years or so, it has been wrestling with this issue, in the form of the question of whether to admit out gays and lesbians to its rabbinical seminaries or to perform marriage ceremonies for gay or lesbian couples. I’d like to trace some of this community’s recent thinking on this matter.
One thing you need to know in advance is there are two categories of law - law which is taken from Torah, and law which was promulgated by the rabbis. They’re both binding, but Torah law is taken as more inviolable than rabbinic law. There is also a rabbinic principle known as “building a fence around Torah” – that is, prohibiting by rabbinic fiat behaviors that might lead to a transgression of a Toraitic prohibition. Many of the rabbinic prohibitions are fences built around Torah law. An example is, if one is not allowed to light candles during the Sabbath, one is not allowed to touch candlesticks either. Touching of candlesticks was not prohibited by Torah, but rather by the rabbis, attempting to make it less likely that one would accidentally break the Torah law.
So - the verse in question in Leviticus has generally been taken to be a Torah law prohibiting anal intercourse. Under the principle of building a fence around the Torah, the rabbis of the Talmudic tradition prohibited homosexual relationships generally in order to prevent the possible accidental transgression of the Torah’s prohibition against anal intercourse. Under this framework, the anal intercourse prohibition is considered torah law, and the prohibition against homosexual behavior is considered rabbinic – still binding, but not as inviolable as a torah provision.
Now we have to look at context. The Levitical author, and the classical rabbis, saw homosexual behavior as a choice - a “lifestyle”, to use the contemporary terminology - made by an individual who would otherwise be heterosexual. The prohibition against homosexual relationships was meant to push people back into heterosexual relationships. And, in fact, where bisexuality exists the halakhic inclination is to push people into covenanted heterosexual relationships. Yet today we understand, as the American Psychological Association puts it, that “human beings cannot choose their sexual orientation.” That is, sexual orientation is not behavior – sinful or not – but rather identity. Further, we know that homosexuality is not a form of mental illness, that it is not inherently harmful to individuals or their children or families, and that it is not reversible by any available therapy.
Given these facts, there are only two available choices for the gay man or lesbian under the traditional prohibitions - first, a heterosexual marriage despite homosexuality – and this, unlike homosexuality itself, is known to be harmful to both the individuals involved and their children. Or the second choice would be celibacy. Nowhere in Jewish tradition is celibacy a desired outcome. Jewish tradition has always seen the ability of a human being to be in a committed, covenantal, sexual relationship as a vital part of the happiness and fulfillment that God wants for God’s children. This is a quandary that gay men and lesbians who have wanted to live as committed Jews in a halakhic framework have had to deal with for generations, much as committed Christians with similar issues have had to deal with the intolerance of their tradition and authorities.
For the Conservative Movement’s Law Committee, the way out of this quandary was to rely on the concept of
kavod habriot – the dignity of the human being. There are many examples of halakhic restrictions that are waived when their fulfillment would compromise the dignity of the person involved. This is particularly so in cases where the entire community is recognized or celebrated in a particular context, and a minority or individual is excluded, causing them shame, as is the case when homosexual members of the community are ignored or scorned.
The Conservative movement’s conclusion was basically to retain the Biblical prohibition on anal intercourse while removing the rabbinic “fence” around it which had prohibited all gay or lesbian relationships or other sexual activity. The law committee found that the dignity of the person should overrule an overly restrictive rabbinic law but not a law from Torah, which they continued to interpret in the traditional manner. But the Law Committee also stated that the observance of this prohibition would be up to the individual’s conscience, and would not be checked before allowing gay men and lesbians full involvement in communal religious activities, any more than one’s observance of Jewish dietary restrictions or restrictions on activities on the Sabbath are checked.
I happen to belong to a denomination, the Reconstructionist movement, which along with the Reform movement has been welcoming lesbians and gay men to full participation in religious life for upwards of 25 years, and supports same-sex marriage rights. I bring the example of the Conservative movement because I believe that it is a good example of a process on the part of a religious community that strives to balance the acceptance of God’s creation in all of its manifestations with the wish to stay true to Biblical truth as they understand it. This is what the Episcopalian Church has been doing as well.
I want to move toward a conclusion by saying that the holiness code is about promoting holiness, holy behaviors. The question - the only question – is, can this be applied to homosexuality?
Our understanding of the nature of homosexuality has changed in the past 50 years, let alone 3,000 years. We know now that first, homosexuality is not chosen, but rather is the result of some combination of biological and environmental influences that can determine a person’s sexuality from an early age. Second, we understand that homosexuality is not by definition degraded,
to’evah – to use the Hebrew term from the text - any more than heterosexuality is. Any sexual activity can be either holy or degraded. A religious approach teaches that in order to be holy, sexuality must be channeled in sanctified ways, through dedicated partnership, mutual respect, and respect for the boundaries of commitment. And these guidelines are as available to gay men and lesbians as they are for anyone else. In fact, it would be irreligious to deny them based upon ancient prejudices.
In a midrash on the holiness code, there is a debate between Rabbi Akiva and Rabbi Ben Azzai over what is the fundamental principle (
klal gadol) of the Torah. Akiva says it is "
v'ahavta l'reyecha camocha" - love your neighbor as yourself. Ben Azzai says the fundamental principle is "These are the generations of Adam" - that is, we are all descendants of the first human, and thus are all created
b'tzelem elohim – in the image of God. Together, these two principles give us a measuring stick for what it means to be holy, to live a holy life.
So when we look at a particular text, or a particular legal stricture, we can ask these questions:
- Does this practice or teaching lead to greater love of one's neighbor, or the opposite?
- Does this practice or teaching affirm that which is Godly in Creation, in every human being, or deny it?
Using this principle, we can approach sacred text and tradition in a new way, making wiser choices about what laws may need to be re-interpreted or overturned, and what is God’s enduring truth.