Halacha may be adjusted to societal reality
By Rabbi Michael Leo Samuel
CHULA VISTA, California — President Obama’s revelation surprised me. I wondered: Why did it take him so long to state his opinion? Wasn’t it obvious?
True, the President indicated that he had reservations on whether he should personally endorse same sex marriage, or not. Although I think the President would be wise to speak more about the economy, the question about accepting gay relationships and marriage is an important issue—but not because of its political ramifications. People have a right to their opinions on this subject—even if I, as a citizen, may not necessarily agree.
There is a higher issue at work here: it’s really about personal autonomy, i.e., the freedom for consensual adults to live one’s personal life without government interference. Therefore, I support anyone’s right to choose having a same-sex marriage.
In all honesty, I did not always feel this way.
Let me share a story with you. In the late 1980s, I lived in San Francisco and I was the rabbi of a Modern Orthodox congregation in the Richmond District of San Francisco. My father was a Holocaust survivor who had witnessed many terrible things in Auschwitz and Majdanek, two of the worse concentration camps of the Holocaust era. Hitler, as you may know, went after the gay community and killed approximately 15,000 in the camps. My father remembered seeing how they were treated. Their suffering left an impression upon him that he never forgot.
After settling in Alameda, California., my father helped establish Alameda’s first Reform synagogue—Temple Israel. Well, one Sunday, I went to visit my father and he was on his way to attend a wedding. I asked him, “Where are you going?” He replied, “I am going to be a witness for a gay Jewish wedding.” Feeling surprised—even shocked—I observed, “Dad, you never cease to amaze me; you are the last person I would have ever expected to participate in a marriage ceremony, given your religious background . . .” Dad replied with a smile, “What’s the matter with you son? What’s so terrible about two human beings wanting to affirm their love and commitment to each other?”
My father’s words left a lasting impression. He helped me to look beyond the religious barriers that tend to stigmatize or marginalize people in the name of “Tradition.” Just as I mentioned earlier, same-sex unions between consenting adults is a privacy issue. Nobody—whether it is the State or the Church or synagogue—has the right to micro-manage people’s personal lives.
Earlier this past week, I briefly participated on an Orthodox blog named Hirhurim, and while I was on, I was surprised to read some of the comments regarding Rabbi Elliot Dorf, who happens to be an outstanding Conservative rabbinical scholar. One person felt it was wrong to call Rabbi Dorf by his title, “Rabbi,” since he endorses gay marriages. Some of us demurred. I wrote, “Whether you recognize Rabbi Dorf as a rabbi is not the issue here; it’s really about respect. You cannot go wrong showing kindness to another person. One can politely agree to disagree without being disagreeable.”
As the conversation ensued, one participant quipped, “According to the Torah, homosexuality is punishable by death!” I asked him, “Can you show me a single instance in Judaism where anyone was ever executed for being a homosexual?” He had no answer. I pointed out that there are two kinds of cases where a homosexual may be executed according to the Mishnah. One case pertains to someone who is threatening to sodomize a man, i.e., homosexual rape. Alternatively, the Mishnah may be speaking of someone threatening to sodomize an underage male child (BT Sanhedrin 73a). However, both cases appear to be only theoretical for there is no court record of any homosexual ever having been executed. If anything, the law is heuristic and intended for some future application, should the practical need arise. In the medieval Jewish period, the death penalty was sometimes administered on an ad hoc basis.
In our discussion, I explained that the scriptural basis of this law most likely derives from the famous biblical story of Lot and the angels:
- But before they laid down, the men of the city, the men of Sodom, both young and old, all the people to the last man, surrounded the house; 5 and they called to Lot, “Where are the men who came to you tonight? Bring them out to us, so that we may know them.” (Gen 19:4-5).
Obviously, the townspeople were interested in not inviting the guests for coffee, cake or crumpets. However, one thing is motivating their behavior—a desire to show that they are in control. Homosexual rape has nothing to with love or even, “free love (for you ex-Hippies). However, it has everything to do with dominance and control. This would also explain why the Torah considers the rape of a male—“an abomination” (Lev. 20:13). Although this term is not used for cases of ordinary rape, one must remember that in a patriarchal society, sodomizing someone against his will evokes disgust and primal fear. In fact, it still does—even in the 21st century.
So, in the final analysis, what does this mean? For one thing, ancient Israel’s society differed considerably from our own. Just because Abraham and Sarah lived in tents, doesn’t mean that we should live in tents also in order to emulate their particular lifestyle. Monogamous male relationships probably did not exist, or, happened to be extremely uncommon in ancient Israel, as it later occurred in Greek and Roman societies. Therefore, the issue of a same-sex marriage is for all practical terms historically irrelevant.
In addition, I would add that there are numerous passages that we do not interpret the Torah literally. The Torah tells us to “circumcise the foreskin of our hearts” (Deut. 10:16). Yet, I do not know of any fundamentalist who would interpret this passage literally; if he did, he would be a fool. In fact, the rabbis frequently refused to interpret biblical legislation pertaining to the death penalty literally because of their concern for the social welfare of the community. We do not stone people for adultery either. If we did, a sizable portion of our society would be dead by now.
Unlike the Fundamentalists of the evangelical community, which tends to focus on the literalism of biblical truth, Jewish tradition has long argued that exegetical interpretations are derived contextually as well. Evangelical scholars often derive the prohibition against same-sex marriage from the biblical passage, “Therefore a man leaves his father and his mother and clings to his wife, and they become one flesh” (Gen 24:25).
While it is true the Genesis passage speaks of a marriage between a man and a woman who create new life, one must remember that marriage is not only for the sake of siring children. The emotional bond of marriage, i.e., “becoming one flesh” can also mean a fully monogamous life that involves sharing and caring to one another. Marriage is the most profound connection that binds two human beings as they face good and sorrowful times together. Each partner is always present supporting the other. “One flesh” entails a lifelong, exclusive attachment of one person to another—both physically and spiritually; this sharing involves a willingness to eliminate all the barriers that keeps their hearts apart from one another.
In summary, a contextual reading of the Torah dealing with homosexuality allows for a more elastic postmodern interpretation that could conceivably permit same-sex marriages.
One last question arises: Is it Halachic?
Halacha is not a static system. It allows for a radical re-visioning of Jewish law based upon the ever changing social circumstances. Hillel, for example, permitted people to circumvent the agricultural laws of the Sabbatical Year—despite the fact scripturally speaking—all debts are cancelled. People who have committed suicide used to be buried in the outer parameters of a Jewish cemetery as a sign of disgrace. Today, psychoanalysis has completely altered our understanding of suicide, which often has physical or psychological causes that overpower a mentally ill person. The rabbis of the Talmud did not understand or legislate against pedophilia, but given what we now know about this terrible social and psychological disease, we would be foolish to rely on the views of Sages that lived almost 2000 years ago who thought molesting a child was harmless. Women never voted in biblical times; today they do, despite the fact that many Halachic scholars think it is biblically forbidden for women to participate in an election or even run for a political office (see the Woman’s Suffrage debate of the early 20th century in the halachic literature).
For generations, the Orthodox homosexual has been marginalized, ignored, and often shamed for being “different.”
This can no longer be tolerated.
Across the Orthodox divide, more and more Orthodox gays are “coming out” and demand that they be treated honorably and lovingly by their families and by their communities. The world has changed, and so must the Halacha. Nobody has the moral or halachic right to expect or demand that a Jewish homosexual ought to spend the rest of his/her life in seclusion, bereft of a life companion.
 Here are just a few examples: The majority of sages commenting in the Mishnah on the biblical law pertaining to lex talionis (Exod. 21:24-2) interpreted this law in terms of compensation—contrary to Rabbi Eliezer, who insisted on a more literal interpretation (Bava Kama 8:1; cf. BT Bava Kama 83b-85b). The Torah prescribed death to the wayward and rebellious son (Deut. 21:18-21), which the Sages effectively abolished, along with the biblical laws regarding the apostate city found in Deuteronomy 12:12-18 (BT Sanhedrin 71a).
 During the 1st century, in an effort to ensure that loans would be made to those in need prior to the Sabbatical Year, Hillel instituted the legal provision known as Prozbul, which enabled the courts to collect the debts and circumvent the prohibition of Deuteronomy 15:2 requiring all debts to be cancelled during the seventh year (See Mishnah Shevi’it 10.3–6, BT Gittin 36a).
 The Sages ruled that someone who has sexual intercourse with an infant under the age of three is not considered to have had sexual intercourse. The Halachic implication is that if there is incest with a child under three (for example, a father who has sexual relations with his under three-year-old daughter) it is not considered incest and the father is exempt from punishment (BT Tractate Niddah 45a). No penalty (financial or corporal) is prescribed for a father who violates his daughter..
 Maimonides explains in the Laws of Kings 1:5 אין מעמידין אשה במלכות שנאמר עליך מלך ולא מלכה. Beyond this general statement, Maimonides clarifies what exactly this means: וכן כל משימות שבישראל אין ממנים בהם אלא איש. Ergo, all leadership positions are for men only.
 Arguing against the issue of women’s suffrage in 1919, Rabbi Abraham Isaac Kook writes:
- Regarding the law, I have nothing to add to the words of the rabbis who came before me. In the Torah, in the Prophets, and in the Writings, in the halakhah and in the aggadah, we hear a single voice: that the duty of fixed public service falls upon men, for “It is a man’s manner to dominate and not a woman’s manner to dominate” (Yevamot 65b), and that roles of office, of judgment, and of testimony are not for her, for “all her honor is within” (Ps. 45:14). Striving to prevent the mixing of sexes in gatherings is a theme that runs through the entire Torah. Thus, any innovation in public leadership that necessarily brings about mixing of the sexes in a multitude, in the same group and gathering, in the routine course of the people’s life, is certainly against the law. (Rabbi Abraham Isaac Kook, “On the Election of Women” September 1919 – Jerusalem) http://www.edah.org/backend/journalarticle/1_2_debate.pdf
In contrast, the Chief Sephardic Rabbi, Ben Tsion Uziel takes umbrage with Rav Kook, while asserting:
- But are women not creatures, created in the Divine Image and endowed with intelligence? And do they not have concerns that the representative assembly, or the committee it will choose, will be dealing with? And will they not be called upon to obey these bodies regarding their property as well as the education of their sons and daughters? In conclusion: having found not the slightest grounds for this prohibition, I find that no one has the slightest right to oppose or to deny the wishes of part of the public on this matter. Regarding a similar situation, it has been said: “Even if ninety-nine request imposed distribution, and only one demands outright competition, that one should be followed, for his demand is legally right”(Mishnah Pe’ah 4:1). Over and above this, it has been stated: “Women were allowed to lay hands [on their sacrifice] for the sake of giving them a feeling of gratification” (Hagigah 16b), even though such an act appeared to the public as prohibited; how much more so in our case, where there is no aspect of prohibition at all, and where preventing their participation will be for them insulting and deceitful. Most certainly, in this case we should grant them their right.
Cited from Mishpatei Uziel 44 (Translation — Zvi Zohar) “Women’s Rights in the House of Representatives and in Institutions of Public and Yishuv Leadership” http://www.edah.org/backend/journalarticle/1_2_debate.pdf
Rabbi Samuel is spiritual leader of Temple Beth Sholom in Chula Vista, California. He may be contacted at firstname.lastname@example.org
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