As Originally Appeared in :
KTAV PUBUSHING HOUSE. INC.
YESHIVA UNIVERSITY PRESS, New York (1984)
Reprinted with permission of Rabbi Basil F. Herring
Recent decades have seen a significant acceptance of a variety of sexually liberal lifestyles. Much has been made of the so-called sexual revolution that has brought about a loosening of traditional values toward sexual relationships that occur outside the bonds of marriage. Prominent among these relationships is both male and female homosexuality, a relationship that can be described as a sexual and emotional interest in members of one's own sex. Studies have indicated that the incidence of homosexuality among males in Western society is significant (Kinsey found that in 1948, in the United States, some 4 to 6 percent of the male population could be considered “hard-core” homosexuals). And a good portion of men have at least one homosexual experience at some time in their lives (according to Kinsey this was true of about one-third of the men he studied).
[EDITORIAL NOTE FROM JONAH, FEB. 2004: Since the 1990's, Kinsey's research, his conclusions, and the statistics he used have been widely challenged by several researchers. See, e.g., Jones and Yarhouse, Homosexuality: The Use of Scientific Research in the Church's Moral Debate, 2000, pages 34-38, and Reisman, Eichel, Hobbs, and Muir, Kinsey, Sex, and Fraud: The Indoctrination of a People, 1990). Most current research states that homosexuality affects approximately 3% of the population, 2-3% of the men and 1-2% of the women.]
The homosexual population of North America has been relatively outspoken in advancing its views and demands for acceptance by society at large. “Gay” activists, as the movement has become known, have lobbied for the acceptance of homosexuality as an “alternative lifestyle,” to be treated on an equal footing with heterosexuality. This has in turn generated a debate over the nature of homosexuality, the number of its practitioners, its effect on society (particularly for the young who might come into contact with it), and the rights of homosexuals themselves.
On the one hand, there have been those who have argued for the complete acceptance of the demands of the homosexual community. The American Psychiatric Association rejected the notion of homosexuality as an illness that requires “treatment,” or of the homosexual as “patient.” A number of Christian clergymen and organizations have come out in favor of an accepting attitude on the part of organized religion, generally on the grounds that consensual relations between adults that foster a loving relationship should be accepted. In many locales civil libertarians have argued for the passing of ordinances forbidding discrimination against homosexuals in employment and in the holding of public office. And in circles of “enlightened” opinion, there is no shortage of those who would defend the view that homosexual acts are not unnatural; that the fact that many people find homosexuality abhorrent is merely the result of social conditioning; that homosexuals are not any more “maladjusted” than heterosexuals, and that those who argue loudest against homosexuality are probably overcompensating for their own latent homosexual tendencies.
On the other hand, there are those who argue that in the first place homosexuality is against God's law, as clearly stated in the Bible. Furthermore, there can be no gainsaying that most people do consider it to be unnatural and abhorrent, and therefore not socially acceptable. Some who hold this view argue that the primary function of sexuality is procreation, and because that is obviously not possible with homosexual acts, there can be no validation of those acts. Others are of the view that in the open acceptance of homosexual behavior is bad for society, particularly for the young, who might be encouraged to imitate such behavior-especially if such contact and activity is initiated by adult homosexuals. Finally, a homosexual “lifestyle” is to be seen as essentially “antifamily,” undermining the family institution that is the basis of society as we have come to know it. It should also be added that among mental health practitioners and theorists, there is one view—that of Freudian psychoanalysis—that sees homosexuality as a form of mental disorder, specifically an inability to resolve issues in the Oedipal stages of personality development, through an attachment to the mother and fear of the father, leading to psychotic and phobic symptoms among “fixed” homosexuals.
[EDITORIAL NOTE FROM JONAH, FEB. 2004: Based upon several clinical studies, an organization of mental health professionals, the National Association for the Research and Treatment of Homosexuality (NARTH) has broadened Freud's view, both as to the causes and the healing strategies available to treat homosexuality. See www.narth.com.]
In responding to these arguments, Reform Jewish spokesman have tended to approve the major goals of the homosexual movement, while certain Conservative leaders have come out in favor of lenient attitudes that would make room for Jewish homosexuals desiring community involvement as a group. Orthodox leaders have generally opposed any legitimization of the homosexual community, for a variety of reasons. The tensions and feelings form the substance of any halakhic response to this painful social issue.
A young man admits in the course of therapy to having overwhelming homosexual preferences. For a number of years he tried earnestly to overcome these tendencies but was unable to do so. He also derives no lasting satisfaction from heterosexual relationships. For this reason, and because he feels the need to pray, he would like to attend services at a well known gay synagogue, where he feels he will be accepted and feel comfortable. What approach would be taken in counseling such a person; may such affiliations be encouraged?
Several questions are raised here, requiring clarification:
1. What is the nature of the prohibition against chronic homosexuality, whether male or female?
2. May a homosexual disclaim responsibility for his sexual preferences, on the grounds that they are not the result of choice on his part?
3. Is there a prohibition against association in public or in private with individuals who profess homosexuality?
4. Is there a place in the traditional Jewish community for avowed homosexuality in public or private life?
A. Leviticus 18:22
Thou shalt not lie with mankind as with womankind, it is an abomination
B. Leviticus 20:13
And if a man lie with mankind as with womankind, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.
C. Leviticus 18:3
After the doings of the land of Egypt wherein ye dwelt, shall ye not do…neither shall ye walk in their statues.
D. Deuteronomy 23:18
There shall be no harlot of the daughters of Israel, neither shall there be a Sodomite of the sons of Israel.
E. Genesis 19:5
And they called unto Lot and said unto him: â€œWhere are the men that come in to thee this nightâ€ Bring them out unto us, that we may know them!â€
F. Mishash, Kiddushin 82a
Said R. Judah: â€œA bachelor should not gaze upon a cow, and two bachelors should not sleep under one cover.â€ But the sages permit this.
G. Kiddushin 82a
It is stated in a Beraita: â€œThey said to R. Judah: Israelites are not suspected in matters regarding homosexuality or zoophiliaâ€
H. Mishnah, Sanhedrin 54a
The punishment for practicing homosexuality or zoophiliaâ€¦is stoning.
I. Sanhedrin 54a-b
Where is the prohibition of homosexuality? Because it says (B) â€œIf a manâ€ i.e., a man and not a minor, and it says, â€lie with mankind.â€ i.e., whether the passive partner be an adult of a minor. And it says â€œas with womankind,â€ from which we learn that there are two modes of lying with a womanâ€¦ This verse speaks of the punishment for this act: whence comes the prohibition? It is Leviticus 18:22 (A). That verse speaks only of the â€œactiveâ€ partner: what of the passive one? R. Ishmael said that it is referred to in Deuteronomy 23:18 (D), as well as 1 Kings 14:24, â€œand there were also Sodomites in the land.â€ R. Akiva said: â€œThose verses are not necessary; instead, there is an alternative reading in our verse, for by changing the pointing to read tishakhev, it would read â€˜thou shalt not be lain with mankind as with womankind.â€™â€
J. Yevamot 53b
Rava said: â€A man may not claim that he committed a prohibited sexual act involuntarily, for there cannot be an erection against his will.â€
K. Yevamot 88a
Said Rava: â€The law is not in accordance with Rav Huna, who said that a lesbian may not marry a kohen [priest]. For even according to R. Eliezer, who considers an unmarried couple who have cohabitated as performing an act of zenut [harlotry, which disqualifies the woman from ever marrying a kohen], this does not apply to two women who lie together; in their case, this is simply sexual licentiousness.â€
L. Maimonides, M.T. Hilkhet Issurei Biah 22:2
Israelites are not suspected in matters regarding homosexuality or zoophilia, therefore it is not forbidden to sequester oneself with another Jewish male. If, however, one does take special precaution to avoid being alone with another male, such an attitude is praiseworthy.
M. Shulhan Arukh, Even ha-Ezer 24
(Quotes (L) Verbatim, then adds:) But in these times, when there is so much licentiousness, one should indeed take special precautions to avoid being alone with another male.
N. Sefer ha-Hinukh 209-210
The view of Maimonides is that â€œthere shall be no harlotâ€ (D) adds a negative command to the prohibition of homosexuality, similar to the number of prohibitions in the Torah that duplicate other prohibitions using different words, I have noted also that according to Nahmanides, (D) forbids us to permit in our holy nation the existence of a kadesh, which refers to a male who is available for homosexual acts, in the manner commonly found in Islamic lands to this dayâ€¦ At the root of this command is that God wanted the world to be populated, and so He commanded us not to waste our seed in the manner of Gentile sexual practices. For homosexuality is in truth destructive of the seed, not leading to offspring, for providing conjugal fulfillment. Besides, such an act is detestable and vile in the extreme to any intelligent person. A person who was created to serve his Creator should not debase himself by such vile acts.
1. THE NATURE OF THE PROHIBITION AGAINST HOMOSEXUALITY
The fundamental fact regarding any discussion of Jewish approaches to homosexuality is that the Torah considers homosexuality to be an abomination, and therefore categorically prohibited (A). It is an act which , if all the legal conditions are satisfied, is punishable by death (B) for both the active (â€œmaleâ€) and passive (â€œfemaleâ€) partners who intentionally commit such an act. The Talmud (H, I) establishes the textual prohibition as well as punishment for them both, even though there is some difference of opinion between R. Ishmael and R. Akiva as to the exact verses involved. Such views are occasioned by the fact that a second verse, found in Deuteronomy (D), prohibits what appears to be homosexuality. The term in Deuteronomy is kadesh, used in juxtaposition to the female kedeshah, which is likewise prohibited. The term kadesh is taken by the preponderance of authorities, such as Maimonides and Nahmanides (see N), to refer to any male who is available for homosexual acts, a state of affairs not uncommon in the ancient Near East.1 For Maimonides, however this is not a separate prohibition but merely an enlargement upon the levitical prohibition, simply echoed and emphasized a second time.
Beyond these purely legal contexts, Scripture conveys its abhorrence of homosexuality through a variety of narrative settings, at least as understood by the rabbinic tradition. The paradigmatic instance of such aberrant behavior is found in the demand of the men of Sodom to â€œknowâ€ the men visiting Lot, the nephew of Abraham (E), thus lending their name to the practice of â€œsodomyâ€ (homosexuality).2 A somewhat similar episode is encountered in Judges 19, this time involving the tribe of Benjamin. Homosexuality as well as incestuous overtones are detected by the amora Samuel in the narrative of the drunken Noah and his son Hamâ€”an act sufficient to cause Noah to curse Hamâ€™s posterity.3 There is also a hint of homosexual intent on the part of Potiphar, master of Joseph. According to Rav, Potiphar purchased Joseph on account of his physical beauty, intending to maintain a homosexual relationship, but was thwarted by divine intervention.4 The Midrash likewise identifies one of the contributory factors leading to the flood that destroyed Noahâ€™s generation as the common practice of issuing formal â€marriageâ€ contracts legitimizing homosexual liaisons in public.5
In later generations, sodomy is encountered in the scriptural account of such practices during the days of the kings Rehoboam, Asa, and Jehoshaphatâ€”and only finally erased by Jostah.6 From such descriptions as these, referring to â€œhouses of the sodomites that were in the house of the lordâ€(2 Kings 23:7), it would appear that they played the role of ritual male homosexual prostitutes until finally eradicated by Josiah.7
In post biblical times, recorded instances of homosexual activity in Jewish communities are rare in the extreme. The Jerusalem Talmud records one such incident, accidentally encountered by R. Judah b. Pazzi,8 while according to Josephus, King Herodâ€™s son Alexander had homosexual tendencies.9
Clearly what emerges from the biblical and post biblical sources is an attitude that considered homosexuality an anathema to be abhorred. The exact class of the prohibition involves a difference of opinion among the rishonim: Maimonides is of the opinion that homosexuality is prohibited because it is considered to be one of the arayot, the severe sexual transgressions, like incest, forbidden to both Jew and Gentile.10 Other early authorities, such as Rashba, Meiri, and Ritva, are in substantial agreement with Maimonides in classifying homosexuality as arayot.11 On the other hand, a minority view is that of Tosafot, which considers the act to belong in the more conventional category of generally prohibited acts, even though punishable by death.12 The distinction is not merely casuistic; it determines whether or not one may submit to performing a homosexual act at the risk of oneâ€™s life, if homosexuality is arayot, one has no choice but to be killed rather than commit such an act. If it is merely â€œforbiddenâ€ (a tav), then submission becomes possible. In any case, it is the majority, and stricter, view that became normative.13 Hence this viewpoint can be seen to be quite consistent with the Talmudic dispensation to prevent an act of homosexual rape, if necessary, by killing the rapist.14
Similarly, because the act is viewed as one of the arayot, it is forbidden to the Gentile as well.15 Indeed, since rabbinic literature presumes Gentile society to be particularly open to homosexual tendencies, extreme care is to be taken in situations where such tendencies might lead to homosexual activity.16 The punishment for Gentile acts of homosexuality is likewise the death penalty, although in certain details this punishment differs from that of a Jewish sodomite.17
Having examined the parameters of the prohibition against homosexuality, we may well ask why the Torah and the tradition are so emphatic in their condemnation of the act. What is the reason for the prohibition? In the Talmud, Bar Kapparah is recorded as seeing a play on words in the very term toâ€™evah, or â€œabomination,â€ as used in the levitical prohibition. To his mind the term is the equivalent of toâ€™eh atah bah, i.e., â€œby such an act you go astray.â€18 The import of this interpretation is taken by the classical commentaries (such as Rashi, Rosh, and Tosatot ad loc.) to refer to the underpinning of marital life by the homosexual abandoning his familial responsibilities to pursue such illicit relationships.
More direct, however is the view that sees in homosexuality a violation of the command to be fruitful. Thus Pesikta Zutarta points out that it is of the very nature of such relationships that no children can result from them.19 Accordingly, sexual activity of this kind must be seen as a violation of the prohibition of the wasting of seed (hashatat zera), otherwise known as onanism.20 This approach is adumbrated by the Sefer ha-Hinukh (N) as in contravention of Godâ€™s will to populate the world, and simply a barren exercise in momentary pleasure â€œIn the manner of Gentile sexual practices.â€21
The Sefer ha-Hinukh also reasons that the act is â€œdetestable and wile in the extreme to any intelligent person,â€ irrespective of a particular prohibition that might be assigned to the act. Clearly this view is echoed in the Talmud itself when it comments on the unnaturalness of the homosexual act, i.e., the anatomical reality that attests to the more natural union of heterosexual activity.22 As Rabbi Barukh Halevi Epstein put it in his Torah Temimah, such activity goes astray from the foundations of creation and of nature.23 Such views are well summarized by Rabbi Norman Lamm when he said that â€œan act characterized as an abomination is prima facie disgusting and cannot be further defined or explainedâ€¦ it is, as it were, a visceral reaction, an intuitive disqualification of the act, and we run the risk of distorting the biblical judgment if we rationalize it.â€24 Hence, no matter how popular or accepted an act, if it remains biblically abhorred and anathemaâ€”and, as Rabbi David Zevi Hoffmann explains, that is the ultimate meaning of the term toâ€™evah: â€it is abominable.â€25
But the most recent, and repercussive, comments elucidating the gravity of the homosexual act are found in a responsum dated 1976, and published in 1981, by Rabbi Moshe Feinstein. He understands Bar Kapparahâ€™s comment (â€œby such an act you go astrayâ€) to be motivated by the following question: There are numerous forbidden sexual acts that are considered toâ€™evah, or an abomination, in Leviticusâ€”but why is homosexuality alone singled out to be referred to twice as an abomination (both in A and B)? R. Moshe answers that whereas the other forbidden acts can be seen as deviant expressions of a basically legitimate and natural sexual urge implanted in manâ€™s nature, the homosexual act is devoid of any natural sexuality in any form, and does not derive from the divinity implanted sexual urge. It is instead a fundamental expression of rebellion against the biblical norm, almost a deliberate flaunting that is carried out because the act is forbidden (le hakhâ€™is). Accordingly, the homosexual act has no justification whatsoever; by its nature it is an act of defiance, and it is therefore the abomination par excellence.26
The discussion to this point, while speaking of â€œhomosexualityâ€ (lit.. â€œpreferring the same sex.â€) in general terms, has not attempted to distinguish between male and female homosexuality. The latter, i.e., lesbian activity, commands separate attention in the halakhic context and is not viewed with the same stringency as homosexuality, albeit it is considered a prohibited act. The Torah forbids the Israelite from imitating the â€œdoings of the land of Egyptâ€ (C), and the Sifra takes this to be referring to Egyptian lesbianism.27 Since its biblical basis does not invoke mention of arayot, lesbianism does not assume the proportions of incest of adultery or other severely prohibited arayot. It remains within the category of the â€œmerelyâ€ forbidden activities.
According to Rav Huna in the Gemara, the act of lesbianism is sufficient to render a woman a zonah (harlot), which in its technical application would disqualify her from ever marrying a priest (K). Apparently, Rav Huna considers the act to involve genital intercourse, and therefore to change the sexual status of the women involved.28 The more accepted view of the Talmud, however, is more lenient, in asserting that such an act is not harlotry (zenut) at all, but merely sexual licentiousness (prizut)(K). Consequently, Maimonides and R. Jacob b. Asher (author of the Tur) codify the law as forbidding lesbian liaisons, even through there is no biblically mandated punishment on technical grounds. (Corporal lashes are administered only where there is a specific prohibition directed to that activity, whereas the "doings of Egypt" includes other activities.)29 At the same time, because there is no zenu,the lesbian may subsequently marry a priest.30 Nonetheless, efforts to prevent lesbian activity are required. Thus for example, the Talmud records the practice of the father of the amora Samuel, who prevented his daughters from sleeping together in one bed, so as not to become accustomed to such patterns of behavior.31 Maimonides likewise counsels care in having women avoid other women known to have lesbian preferences.32
Why the halakhah distinguishes in this way between male and female homosexuality is not absolutely clear. While Maimonides speaks in terms of lesbianism not being an act of genital intercourse (btah), it would appear that a more fundamental reason would be the absence of destruction of the male seed, the consideration that figures so prominently in the prohibition of male homosexuality. Thus lesbianism is forbidden as an act of sexual license, in that it is perceived as weakening the fabric of family life and the normative patterns of permitted sexual expression.
One final question in dealing with the nature of the prohibition can now be dealt with: Is it the homosexual act per se that is prohibited and is the exclusive concern of the Torah, or is there a prohibition even of homosexual preferences, thoughts, or friendships that do not involve the act of sexual intercourse of sodomy? Moshe Haievi Spero has argued that the latter are likewise prohibited in the Torah by implication. 33 Starting with the verse in Genesis 2:24, "therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they shalt be one flesh," and the talmudic inference that "cleaving" by implication is opposed to homosexuality (in that the physical union in homosexuality is not complete).34 Spero concludes that the verse is an indictment even of homosexual thoughts. This follows from the verse's emphasis on acheiving a stable and healthy sexual life by detaching oneself from any sexual attraction to one's parents, whether hetero- or homosexual. Accordingly, what the Torah seems to be requiring as a normal heterosexual outlook, one that has resolved any latent parent-child conflicts that might lead to a homosexual orientation, Spero concludes that the homosexual, even without engaging in homosexual acts, fails to achieve the scriptural mandate of heterosexual maturity or completeness (in accordance with the talmudic statement that "any man who has no wife is not a man")35 Thus, irrespective of the consequences for family life or social stability, the homosexual is to be regarded as defective, whether or not he engages in homosexual acts.
2. CAN THE HOMOSEXUAL DISCLAIM RESPONSIBILITY FOR HIS CONDITION?
From the preceding discussion it is obvious that the biblical-rabbinic tradition considers homosexuality to be forbidden under any circumstances, when undertaken as a deliberate, conscious act. That is to say, one may not freely choose to engage in homosexual relations as an "alternative sexual preference." But what if one is a so-called genuine homosexual, who has made serious efforts to overcome that orientation, but to no avail. Is he to be held responsible for his condition, even though it is not by choice?
The question is not merely technical, for it gets to the heart of the issue as to how the homosexual is to be treated within the halachic community: Is he a sinner, or merely "sickâ€; is he immoral, or simply the victim of circumstances and forces beyond his control?
The fundamental halakhic principle touching on this problem occurs in tractate Yevamot (J), where Rava states that a male who commits a prohibited sexual act cannot claim to be acting under duress, for by virtue of having achieved sexual erection, he is deemed to have desired that act. This is not the case with a woman, who, even though she too might have been sexually stimulated, might well claim that her response was involuntary and under duress, as the result of a rape situation.36 In the case of a man, In Rava's view, there cannot be an erection against one's will. This principle was formulated and codified into law by Maimonides. 37 The only mitigating consideration occurs when such sexual arousal occurred in an initially legitimate context but was deflected by external coercion to a forbidden act. 38 The severity of this principle is clearly consistent with normative view, encountered earlier,39 and articulated by Maimonides, that would prohibit a man from performing a forbidden sexual act under duress.
It is this principle which must govern the attitude taken toward the genuine homosexual. Accordingly, he cannot claim internal "duress," or the inability to control his sexual drives. If he is sexually aroused, it must be assumed that this is an act of his own autonomous desire, and hence he is responsible for his condition. This is particularly true when, as is normally the case, the homosexual derives pleasure from the act, for as R. Moshe Feinstein has argued in a slightly different context, any pleasure derived from a prohibited act performed under duress increases the level of prohibition.40
And yet, having affirmed that the homosexual cannot disclaim responsibility for his condition, there is room to argue for a more lenient judgment of homosexuality if it is perceived as a disease. Rabbi Norman Lamm has argued for the view of homosexuality as pathology, based on findings that indicate certain developmental traits, such as passivity, dependence, and phobic tendencies.41 Responding to the majority view of the American Psychiatric Association, which declares homosexuality "normal," Lamm believes strongly that such a view is politically motivated and the result of societal pressures brought to bear. In his view there are sufficient clinical traits that would render homosexuality to be a pathology that simply cannot be turned into health by majority vote. Invoking the principle that "no man sins unless he is overcome by a spirit of madness" (Sotah Sa). he argues for leniency in formulating a halkhic response to genuine homosexuality. Lamm finds a rough parallel in the response of the Halakhah to a suicide. The suicide is generally presumed, unless there is strong evidence to the contrary, to have acted out of a measure of insanity or incompetence, even though the Halakhah retains the strongest possible anathema against the act of suicide.42 Similarly, homosexuality can be viewed as absolutely prohibited even while the homosexual himself is to be sympathetically understood with a view to treatment and rehabilitation. Lamm similarly argues against judicial punishment for such activities, as being at best ineffective and at worst counterproductive.
Reinforcing this view is a responsum by R. Hayyim Pelaggi, in the nineteenth century.43 Dealing with the status of an admitted homosexual, Pelaggi accepts the possibility of genuine repentance and rehabilitation of the individual concerned, even though he cautions against anyone secluding himself with that individual. Apparently, even when repentance is genuine, the possibility of subsequent failure remains and requires additional precaution. The first Chief Rabbi of Israel, Rabbi A. I. Kook, likewise assumes the possibility of repentance of a homosexual in a responsum dealing with an individual suspected of such activity.44
To summarize, then, the homosexual is held responsible for his actions, no matter how much they may be the result of inner forces which he feels are beyond his control. But at the same time, such behavior, when genuinely impervious to sincere efforts to change, is to be viewed with compassion and sympathetic concern that is intended to overcome the effects of this pathology. Repentance must always be a possibility, even though homosexuality constitutes a sickness of profound proportions.
3. ASSOCIATION OR SECLUSION WITH THE HOMOSEXUAL
The Mishnah in Kiddushin (F) records two opinions regarding latent homosexuality and the problems involved in two men sleeping under one cover. R. Judah forbids such intimacy, evidently on the grounds that homosexual tendencies might come to the fore, whereas the sages, constituting the preponderance of tannaim, did not share this concern and permitted two Israelite men to share a blanket. The Gemara records the basis for their leniency in the face of R. Judah's concern: Israelite men are not suspected of harboring homosexual tendencies (G). Hence, no special precautions are required as a matter of course. An adjacent passage similarly records two views regarding seclusion with another person who is sexually forbidden because of the prohibition of arayot. In that passage, R. Judah reports the view of R. Assi permitting such seclusion and allowing a man, for instance, to live with his mother or daughter. The amora Samuel, however, is opposed to any seclusion involving two people whose union is prohibited as arayot.45
Regarding both passages, Maimonides accepts the more lenient view:i.e., he agrees with the sages and R. Assi that, as a rule, seclusion, and even sharing a blanket with another male, is permissible.46 Nevertheless, Maimonides does add that extra precaution is praiseworthy and to be admired, even though not strictly required by law (E). Such precautions would seem to be prompted by the concerns of R. Judah and Samuel.47 In Addition, the same passage in the Gemara records the personal precautions of Abbaye and Rava, as an act of persona piety, to avoid any hint of such seclusion. The Tosafot likewise accepted the view of R. Assi, against the view of Samuel.48 Maimonides' decision and formulation (L) was adopted verbatim by the Tur.49
Such an agreement notwithstanding, subsequent generations saw a measure of debate. R. Joseph Karo, in formulating the law in his Shulhan Arukh (M),first quotes Maimonides but then adds the important qualifier that in times of widespread sexual license, such as in his own day, the extra precautions were not merely "personal piety" but required by law. This view, as explained by the Vilna Gaon,50 understood the lenient view of the sages to be conditional upon the perceived behavioral patterns of a given age, and not a blanket principle with universal validity though time. Hence a more strict application of R. Judah and Samuel becomes possible in another era.
However, there were those who insisted on retaining the earlier, more permissive view regarding such seclusion, R. Joel Sirkes (known as the Bah), about a century after the Shulhan Arukh, considered the ruling of the Shulhan Arukh to have been the result of conditions and practices peculiar to his own time and place, but not valid in seventeenth-century Poland, where homosexuality was unheard of among Jews, according to him.51 Accordingly it was his view that avoiding seclusion with another male Israelite, while praiseworthy, was certainly not required by law. An even more lenient position was taken by R. Solomon Luria (Maharshal). In his view, not only is such seclusion permitted, but one who deliberately avoids seclusion with another male (or an animal, for that matter) is guilty of acting presumptuously(mihzi ke'yuhera). 52 He bases his view on a passage in Rabbeinu Asher (Rosh) that speaks of permissible avoidance of seclusion with conventional arayot, without mentioning homosexuality or zoophilia, and from this he concludes that there is no warrant for deliberately avoiding seclusion with another male. Luriaâ€™s position, however, was criticized by later authorities for not recognizing other passages by Rosh, as well as those by Maimonides and R. Jacob b. Asher, that explicitly include homosexual concerns as legitimate reason to avoid seclusion.53
Subsequent authorities tended to the view of R. Joel Sirkes, i.e., as a rule the law does not require special precautions to avoid seclusion, for such action can be left to the personal piety of the individual, unless there is widespread practice of homosexuality in a given time or place, such as that of the Shulhan Arukh. Thus, for instance, R. Jacob Emden (Ya'avez) mentions in passing that no special precautions are required when two Israelite men are secluded together,54 R. Hayyim Pelaggi, in the above mentioned responsum,55 prohibits seclusion only where one of the individuals involved has shown homosexual tendencies or experiences in the past.56 In the twentieth century, Rabbi Abraham Isaac ha-Kohen Kook, in the above-mentioned responsum, added a novel explanation: The differences between Karo and Sirkes can be explained with reference to the respective climates of Israel and Poland, whereby colder lands such as Poland see less homosexual activity, while the warmer Middle Eastern countries are more conducive to homosexual proclivities. Hence Sirkes in Poland is more lenient, and Karo (in Israel) is more strict. On the basis of this distinction, Rabbi Kook considers the view of Karo in the Shulhan Arukh to be operative at least in Israel, and he thus finds fault with an individual for having permitted himself to be secluded with another male.
The outcome of views such as these is that the permissibility of seclusion with another male is a function of the climate -whether physical or moral- of one's times, and this is so whether we adopt Rabbi Kook's criterion of hot or cold weather patterns, or the more conventional approach of determining what kind of sexual practices are prevalent in a given society. Where homosexuality is widespread and openly practiced in many quarters, and where sexual licentiousness is the hallmark of the time, it would appear that even the lenient school would prohibit seclusion with another male, even without his having evinced homosexual tendencies in the past. Such precautions would apply a fortiori to sleeping under one blanket.57
4. HOMOSEXUALITY IN THE JEWISH COMMUNITY
It is clear from the foregoing that no responsible traditionalist could seriously consider homosexuality to be an "alternative sexual preference" to be accepted side by side with heterosexuality.58 Whether it be viewed simply as "abomination" of more analytically as in contravention of divine intentions vis-a-vis human fulfillment and the begetting of progeny, homosexuality remains anathema. In the Torah it is a capital crime, associated with the most corrupt societies, such as Sodom and decadent Egypt. The view of Maimonides is that homosexuality is forbidden as arayot, i.e., comparable in seriousness to incest, while Tosafot considered it "merely" prohibited. In this dispute, Maimonides' stricter view became normative, with one result being the acceptance of the permissibility of killing a homosexual who is about to rape another male, assuming there is no other way to prevent the act.
As to the reason for the Torah regarding homosexuality as an abomination, there are three major views: Some, like Rashi, see homosexuality primarily as a threat to family life; others, like the Sefer ha-Hinukh, find the rational in the "wasting of male seed," otherwise referred to as an onanism. A third approach could be characterized as nonreductionist, i.e.,the homosexual act is simply detestable. It is not important how we formulate the rationale, for the act remains "unnatural" and simply unacceptable. Such a view is associated with Bar Kapparah in the Talmud.
Lesbianism is not viewed by the Halakhah with the same degree of seriousness, even though female homosexuality remains strictly forbidden. While all are agreed that it is not one of the arayot, there is some difference of opinion about whether it is a form of harlotry of merely sexual licentiousness. The latter, more lenient, view was accepted by most authorities, including Maimonides and R. Jacob b. Asher. Nonetheless, they urged extreme caution in avoiding women known to have homosexual predilections lest associations with them lead to lesbian activities.
This, however, is not to say that all halakhists would insist on punishment of the genuine homosexual. Some, such as Rabbi Norman Lamm, have argued for a more realistic approach that, while recognizing the heinousness of the act, perceives homosexuality as a form of disease of psychological disability and pathology requiring treatment and not incarceration, understanding and not harsh judgment. An approach of this kind could be a parallel to the attitude of Halakhah to the suicide, which condemns the act even while taking a humane and conciliatory approach to the agent himself. This view is consistent with the few responsa on the topic in general that speak of repentance and rehabilitation (R. Hayyim Pelaggi and Rabbi A. I. Kook).
One further area of concern in developing an overall approach to the place of homosexuality in the Jewish community occurs in the halakhic discussion pertaining to seclusion with another male, with or without a homosexual history. The talmud records two opinions, one permitting two Jewish men to be secluded with each other, the other forbidding this. The former view predominated, in that Israelite men were not to be suspected of homosexuality. Nonetheless, while most authorities permitted this seclusion, they also viewed any special precautions preventing it to be a desirable step, even though not required by law. Such was the view of Maimonides and R. Jacob b. Asher, and later of R. Joel Sirkes. A more restrictive position is taken by R. Joseph Karo in the Shulhan Arukh. It is his position that if in fact lewdness is socially widespread, then such seclusion would be forbidden by the law. On the other hand, however, Maharshal took a very lenient view regarding seclusion: One who avoids seclusion is guilty of presumptuous behavior and is not to be tolerated. This latter view did not become widespread. The generally accepted view was to permit seclusion where neither individual thus secluded has a history of homosexuality--except in places or times where sexual license and depravity are widespread. In such cases extra care would be required by law. This is the thrust of remarks by the Vilna Gaon, R. Hayyim Pelaggi, Ya'avez, and Rabbi A. I. Kook. Similar positions have been enunciated by other traditionalist spokesmen within the Orthodox community.59
Attempts to come to terms with the problems of homosexuality that argue for its acceptance because it is so widespread seem to put the cart before the horse. The Halakhah, as we have seen, classically has responded to sexual depravity by raising, not lowering, acceptable standards of behavior, and by demanding additional precautions and care. The answer to the "gay liberation" movement in halakhic terms cannot be by meeting it halfway, but rather by an unequivocal rejection of such practices, while seeking to help in every way those genuine homosexuals who wish to overcome their unfortunate condition.
To return to the case which this chapter began, the young man should not attend services or programs at homosexual synagogues or organizations. Instead, he should make every effort to find a conventional synagogue where he might feel socially accepted. He should certainly attempt to overcome his condition by psychological therapy and genuine religious introspection leading to a more normal sexual life.
|1. ||Cf. Rashi to Deut. 23:18. Onkelos, however, takes the term kadesh to be referring to marriage with a Canaanite bondwoman - cf. Sefer ha-Hinukh 209, and Minhat Hinukh ad loc., sec. 3. |
|2. ||Cf. Genesis Rabbah 50:5, on Gen. 9:22 ff. More generally see M.Kasher, Torah Shlemah, vol. 3 to Gen 19:5. |
|3. ||Sanhedrin 70a. Rav's view, however, is that Ham castrated Noah. thereby preventing the birth of a fourth son, and accounting for the curse of Ham's own fourth son, Canaan. |
|4. ||Sotah 13b, with reference to Gen. 39:1. Rav derives this from the subsequent listing of Potiphar as Potiphera (Gen.41:45), the latter term implying mutilation (by the angel Gabriel, according to Rav). Cf. Targum Yerushalmi to Gen. 39.1, and Rashi ad loc. |
|5. ||Leviticus Rabbah 18:13. |
|6. ||1 Kings 14:24 , 15:12 , 22:47: 2 Kings 23:7. |
|7. ||This is the conclusion reached by Sanhedrin 24b. See also LouisM. Epstein, Sex Laws and Customs in Judaism [ New York , 1948], pp. 135-136. |
|8. ||Jerusalem Talmud Sanhedrin 6:3 (p. 28a). |
|9. ||Josephus. Wars I, 24:7, as well as his Antiquities of the Jews 15:25-30, in referring to the Roman ruler Anthony, whose homosexuality was evidently well known. Cf. Epstein, Sex Laws, p. 137. A passing reference to Roman sexual depravity is found in Lamentations Rabbah 4:4. |
|10. ||Maimonides, M.T.Hil, Melakhim 9:5 - 6. This is based on Sanhedrin 58a. Cf. also M. T. Hil, Rozeiah 1:11. |
|11. ||Responsa Rashba1237,Meiri to Sanhedrin 9b, and Ritva to Pesahim 26b, in the name of Ra'ah. These and other sources are discussed at length in Meir Krauser, Devar ha-Melekh (Jerusalem,1962), Vol.1, pp.22-23. |
|12. ||Tosafot, Sanhedrin 73a, and Tosafot, Yevamot 54b, The Penei Yehoshua (Responsa on Ever ha Ezer 44) agrees with this minority view. |
|13. ||For further discussion of this point, see below regarding the status of one forced to perform a homosexual act. |
|14. ||See Sanhedrin 73a. |
|15. ||Sanhedrin 58a, and Maimonides, M.T. Hil. Melakhim 9:5-6. The biblical source is Gen. 2:24. |
|16. ||See Maimonides, M.T.Hil. Issurei Biah 22:5. Also see Sefer ha-Hinukh (N). |
|17. ||Maimonides, M.T. Hil. Issurei Biah 14:18, Hil. Melakhim 10:1-2 and 9:6. |
|18. ||Nedarim 51a. |
|19. ||Cf. Torah Temimah to Lev. 18:22. |
|20. ||For a general discussion of the prohibition of the wasting of male seed, see above Chapter 1. |
|21. ||A preponderance of views agree that the prohibition is biblical and not merely rabbinic in nature. Cf. the exchange in Tradition 9, nos. 1-2 : 205-212, no.4 : 140-147. |
|22. ||Sanhedrin 58a. |
|23. ||Torah Temimah to Lev. 18:22 and Gen. 2:24. |
|24. ||Norman Lamm, "Judaism and the Modern Attitude to Homosexuality, Encyclopaedia Judaica Yearbook, 1974, and reprinted in M. Kellner, ed., Contemporary Jewish Ethics(New York, 1978), p.383. Many of Lamm's points were made earlier in his "The New Dispensation on Homosexuality: A Jewish Reaction to a Developing Christian Attitude," Jewish Life 35, no. 3 (January - February 1968): 11-16. |
|25. ||The Commentary of D.Z. Hoffman to Leviticus (Jerusalem, 1972), to Lev. 18:30 (vol.2, p.54). |
|26. ||See Moshe Feinstein, Iggerot Moshe (New York, 1973), Orah Hayyim 4:115. |
|27. ||Sifra Lev. 9:8. |
|28. ||Cf. Rashi to Yevamot 76a, and Tosafot ad loc. |
|29. ||Maimonides, M.T. Hil. Issurei Biah, 21:8, Tur Even ha-Ezer 20. |
|30. ||Ibid |
|31. ||Shabbat 65a. |
|32. ||Maimonides, Hil. Issurei Biah, 21:8. |
|33. ||Moshe Halevy Spero, "Homosexuality: Clinical and Ethical Challenges." Tradition 17, no. 4 (Spring 1979): 57-59. |
|34. ||Sanhedrin 58a, Torah Temimah to Gen.2:24. |
|35. ||Yevamot 63a. |
|36. ||The classic illustration is Esther in the Purim story, as explained by Tosafot to Yevamot 63a, as well as Ketuvot 51b and Sanhedrin 73a. |
|37. ||Maimonides, M.T. Hil. Sanhedrin 20:3, Hil. Issurei Biah, 1:9. |
|38. ||Tosafot, loc.cit., as well as Kesef Mishnah to M.T. Sanhedrin, 20:3, and Maggid Mishnah to Hil. Issurei Biah, 1:9. |
|39. ||Cf.above, p.183. |
|40. ||R. Moshe Feinstein, Iggerot Moshe, Yoreh Deiah 2:59. Likewise Responsa Atvan de'Oraita 24. Similar considerations are to be applied in avoiding therapy that requires therapeutic sexual arousal: see Spero, "Challenges," pp. 59-65. |
|41. ||Lamm, "Homosexuality," p.393. Cf. also David Feldman, in Sh'ma 2, no. 33 (1972): 100-102. |
|42. ||J.M. Tykocinski, Gesher ha-Hayyim 1:25. Cf. also Y. Greenwald, Kol Bo al Avelut (New York, 1965), pp.319-321. |
|43. ||This appears in his Ruah Hayyim, as quoted in Ozar ha-Paskim, Even ha-Ezer 24:1, sec. 2. |
|44. ||Responsa Da'at Kohen 3, as quoted in Ozar ha-Poskim, loc.cit. |
|45. ||Kidushin 81b. |
|46. ||Maimonides, M. T. Hil. Issurei Biah 22:2. |
|47. ||Maggid Mishnah to ibid. |
|48. ||See the comments of the Bet Yosef on the Tur, who quotes Rosh to this effect. |
|49. ||See Tur Evan ha-Ezer 24 (a printer's error in the Tur is noted in the Ozar ha-Poskim, ibid., whereby the word aviv ("his father") should be amended to read zakhor ("a male"), yielding the conventional prohibition of secluding oneself with another male. |
|50. ||Beur ha-Gra to Shulhan Arukh, ibid. |
|51. ||Bayit Hadash to Tur Even ha-Ezer 24. |
|52. ||Yam Shel Shelomoh to Kiddushin 4:23. |
|53. ||Cf. Ozar ha-Poskim quoting Ra'avan, Yosef Omez, and others. |
|54. ||Responsa Ya |