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Dear David,

Homosexual Relationships
A Halakhic Investigation
by
Rabbi Simchah Roth
Preface
On the day of the funeral of Yitzchak Rabin I was asked by some Internet friends to
teach some mishnah, as is customary in a house of mourning. That ad hoc teaching
was maintained by popular request and gradually the small group of friends has
grown into a large corpus of about one thousand committed Conservative Jews who
study mishnah daily with me on-line via the Internet. We started off with tractate
Kiddushin, then moved on to tractate Berakhot. The third tractate we studied was
Sanhedrin. By April 1999 we had reached Sanhedrin 7:4 which contains a list of
those offences whose punishment (under appropriate circumstances) is death by
stoning. Among the items in that list is copulation between two males. Now the
participants in the Rabin Mishnah Study Group are not just passive learners; they ask
questions and make comments. On April 16th 1999 I wrote in my daily shiur:
I do not recall a topic discussed on RMSG that has produced so much
in my mailbox as our present discussion on homosexuality... I cannot
possibly answer all this mail personally, nor can I utilize it all as part of
our discussion. Therefore, I shall continue my rather elaborate
response to the original question ... and I hope that most people will
find in my response some of the clarifications they are seeking...
As far as one subscriber was concerned my judgement against personal
correspondence was firmly ignored. Via e-mail, David
1
introduced himself to me as a
young gay man (he was about 20 at the time). He came from a committed
Conservative Jewish family in the USA and was himself religiously observant. He
told me that he laid tefillin every day, never rode on Shabbat, never ate anything but
kosher outside his home and so forth. He and his sister often read from the Torah in
their local synagogue. No one knew of his sexual orientation, not even his close
family, and despite my urgent prompting he refused to approach his local rabbi to
open this discussion with him.
His e-mails to me showed how much he suffered from the fact that his natural
inclinations seemed to be damned by the Torah. He tried so hard to be a good
Conservative Jew, out of inner conviction; how could it be that he was branded by the
very tradition that he so cherished as a perverted sinner? He was not challenging me;
he was not tub-thumping on a soap-box; he was begging me, pleading with me, to
resolve for him his soul-searing dilemma. He wanted to be accepted for what he was.
When he was about 14 or 15, in the family collection of books David had found
Hyman Goldin's translation of Ganzfried's "Kitzur Shul!an Arukh"
2
There he had
found Chapter 151 and it had devastated him:
It is forbidden to discharge semen in vain. This is a graver sin than any
other mentioned in the Torah. Those who practice masturbation ... not
only do they commit a grave sin, but they are under a ban...
Occasionally, as a punishment for this sin, children die young...
It was not until he wrote to me at that time that he confided to anyone that he still
masturbated and that the only erotic images that he could summon up were male. Our
correspondence has continued intermittently to this day; he writes whenever he has a
query.
1. This is not his real name; he has a right to his privacy.
2. Hebrew Publishing Company, New York, 1961.
i
David related that during the years of his adolescence he had "fallen in love" several
times, but had never even dared to approach any of these objects of desire since he
had no way of telling whether they were like him or not and he was afraid of how
they might react to his advances. Thus, at a time when all his school friends were
developing friendships and experiences with girl-friends he was condemned to a
lonely and secret love affair with his strong right hand. In college the inevitable
happened: he found another young man who was just like him and they became firm
friends. Through his connection with David, Jonathan
3
also began to be religiously
observant, and soon their friendship developed into something much deeper and
much more meaningful. To make matters even more complicated David discovered
another love: the teaching of Judaism. His passion for our tradition and its learning
was so strong that he decided that he wanted to go to rabbinical school...
Another regular contributor to RMSG (right from the very beginning) was a woman
then in her 40's. Let us call her Chrie
4
. Chrie was a lesbian already living with her
partner in New York. Chrie too was a staunch Conservative Jew, very active in her
local synagogue. Unlike David, Chrie was full of anger and rancour against the
Conservative rabbinate. Too many rabbis, she claimed, were "making sympathetic
noises" but not actually doing anything to ease the plight of religious gays. No doubt
I was included in that category, though she was far too polite to actually say so.
During the years that have passed I have lost contact with Chrie, but the memory of
her bitterness has prompted me to include female homosexuals in this paper, even
though it was prompted by my e-mail discussions with David. Maybe one day she
will see this preface and recognise herself; perhaps I shall have redeemed the
Conservative rabbinate in her eyes.
Out of my e-mail discussions with David (with a few from Jonathan added in for
good measure) has grown this paper. David and I have never met and for all I know
we never shall. But he has bared his soul to me, and I hope that through the
rabbinical "jargon" the anguish of his tortured soul is to be perceived. David was not
interested in platitudes and generalities. He wanted to know what classical halakhic
Judaism had to say and to what extent a modern Conservative understanding of
halakhah could accommodate him, if at all. David was interested in "shas and
poskim" rather than re-interpretations of biblical texts. This suits me!
This paper consists of two parts. Part one was written with David (and Chrie) in
mind; part two is addressed more to my rabbinical colleagues. Part one is addressed
primarily to David (and Chrie) with my rabbinical colleagues reading over their
shoulders; part two is addressed to my rabbinical colleagues with Chrie and David
reading over their shoulders.
Rambam originally wrote a magnum opus, ohfucb vrun, Moreh Nevukhim, the Guide
for the Perplexed, as a letter to one of his students. In a prefatory message he wrote:
hkmt sunkk .rt humen ,tcu hbpk ,sng ratf //// rehv shnk,v v,ta ,uhvc
v,tu 'h,kuzn vktv ohbhbgv in uvan ,yke rcfa lh,htru ///hbhgc l,kgn vksd
rzd ratfu ///.pj rcs tmnk lnn ,arus vscfbv lapbu 'ohxuxv lckc ukjvu lucb
'hc vcfa rcfa vnzh ,uahdpv o,ut hc urrug ,hbp ratk ,hbpu vshrpv kg wv
/ouka v,tu /// lhnusku lk uh,rcj rat vz rntn rucjk lrsgv hbrrugu
5
3. Obviously, this too is not his real name.
4. You must have guessed that this is not her real name either.
5. From the version translated into Hebrew by the late Rabbi Yosef Kafi!, slightly edited.
ii
My honored pupil ... when you came to me from a distant land to study
under my guidance, I had a high opinion of you... and I saw that you
had already acquired some smattering of this subject from people other
than myself. You were perplexed, as stupefaction had come over you,
and your noble soul demanded of you to find out acceptable words
[Ecclesiastes 12:10]. When God decreed our separation and you
betook yourself elsewhere, these meetings aroused in me a resolution
that had slackened. Your absence moved me to compose this Treatise,
which I have composed for you and those like you... Be in good
health.
6
I hope it will not be considered too precocious if I too suggest that this paper be
understood to a certain extent to be a letter to David. After all, I am "hanging myself
on a very great tree"
7
. Because the material offered in this paper is also a kind of
letter to a kind of student I have called it
Dear David...
6. From the translation by Shlomo Pines, slightly edited.
7. See Bavli, Pesa!im 112a and Rashi ad loc.
iii
HOMOSEXUAL RELATIONSHIPS
A HALAKHIC INVESTIGATION
by
Rabbi Simchah Roth
Introductory
Quite some time ago there was a discussion among the rabbis on Ravnet concerning
the permissibility or otherwise of performing a "marriage" ceremony for a
same-gender union. I concluded my contribution to the discussion thus:
We must actively seek a halakhic solution that would not ignore a
prohibition that is still viewed as t,hrutsn mi-de-orayta
8
(though I do
believe that another view is possible), but that also would not
effectively ostracize homosexuals and condemn them to ,ubhdg aginut
9
,
and that would also be a solution that the vast majority of the members
of the Rabbinical Assembly could live with. If I had the time and the
creative halakhic competence that is exactly what I would do.
What follows is my attempt to redeem the undertaking implied in that last sentence.
I offer the following statements as being truisms.
1. Homosexuality is a variation in human sexuality in which emotional and
sexual attraction are directed towards persons of the same sex and not of the
other sex. It is not clear whether the etiology of this variation is genetic
inheritance or acquired conditioning in infancy. What is clear is that, like
"straights", "gays" have no conscious control over their sexual orientation.
2. Homosexuality is no longer seen by the medical profession as a mental
illness, and is therefore not seen as needing treatment. Where attempts at the
sexual re-orientation of gays are made, statistically the incidence of successful
results is negligible and it quite often causes psychological harm
10
..
3. According to traditional halakhah, the Torah specifically prohibits anal
intercourse, and other forms of sexual activity are also seen by the halakhic
tradition (as heretofore understood) as being sinful.
4. Despite the attitude of medical experts mentioned above, a large segment of
modern society
11
still views homosexuality as an aberration, with degrees of
disapproval varying from mild distaste to verbal and physical abuse that
include mayhem and murder. This means that generally speaking gays are
reluctant to admit their orientation and suffer mentally and emotionally from
their situation, this suffering causing tendencies towards acute depression and
even suicide at a rate far greater than that observed in society in general.
5. In addition to the problems discussed above the gay Jew who would like to
lead a rich and committed Jewish religious life is distraught by the fact that
homosexual acts are sins according to the halakhic tradition as expounded
heretofore.
8. I.e. that it has the force of a commandment of the Written Torah.
9. This refers to a situation in which a person may not marry or have a sexual relationship with another
because of their halakhic status, a status which cannot be righted by them.
10. See note 71.
11. However, this segment is constantly decreasing as numerous opinion polls have demonstrated.
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Dear David
Homosexual Relationships - A Halakhic Investigation
At the beginning of the last decade of the 20th secular century the Committee for
Jewish Law and Standards (CJLS) of the Rabbinical Assembly in the USA discussed
several responsa concerning homosexuality and the Conservative Jewish community.
The main provisions of a consensus statement based upon the responsa that were
accepted were that homosexuals are to be welcomed into our congregations but may
not be accepted into our rabbinical schools or into the Rabbinical Assembly, may not
function as rabbis or as cantors, and that members of the Rabbinical Assembly should
not perform commitment ceremonies for gay couples. With regard to synagogue
honours, and other functions (e.g. teachers, youth leaders) each rabbi as tr,ts trn
mara de-atra
12
(or tr,ts t,rn - marta de-atra) would decide the matter. There were
dissident papers submitted, but only one of them was accepted, and the ultimate
conclusion of that paper was that even though a major change was needed, the time
was not yet ripe for such a change.
Of the responsa that were accepted two from that period should be noted. Rabbi Joel
Roth's responsum
13
thoroughly discussed the etiology of homosexuality and halakhic
considerations. The ultimate conclusion reached by the respondent is that being
homosexual is no sin, but homosexual behaviour is sinful and that halakhic tradition
requires the homosexual person to commit himself or herself to celibacy.
This responsum of Rabbi Joel Roth came under intense criticism in the noteworthy
dissident responsum of the period, by Rabbi Elliot N. Dorff, who made some
perceptive comments concerning this ultimate conclusion of Rabbi Roth's responsum:
Rabbi Roth's legal formalism is bad enough intellectually, but here the
results of that method lead him ... to unbelievably cruel results... Since
the vast majority of psychological literature on the subject attests, as
Rabbi Roth admits himself, that psychological techniques are incapable
of changing a homosexual person into a heterosexual one, Rabbi Roth
is effectively - indeed, explicitly - asking gays and lesbians to refrain
from sexual expression all their lives. That result is downright cruel.
14
There is no doubt that Rabbi Roths conclusion parallels halakhic thinking in the
Orthodox world which teaches that according to Torah (in the widest sense of the
term) the ideal situation for a person with a homosexual orientation is committed
celibacy. This is not the position taken in this paper. However, we must note that
more and more Orthodox and ultra-orthodox respondents are adding to that
conclusion a rider in some form or another whose effects could ultimately lead to
practical conclusions rather different from those of our own CJLS. Rabbi Chaim
Rapoport, a member of the "Cabinet" of the Orthodox chief rabbinate of Great Britain
writes:
15
... When counselling homosexuals it is unrealistic to expect prohibited
behaviour to stop immediately. In the interim, we must help
homosexuals avoid the pitfalls of promiscuity, despair and the various
ailments to which they are vulnerable. Depression and suicide attempts
among homosexuals are not rare occurrences. Rabbis, teachers and
counsellors must be alert to these issues, and "not stand idly by" in
12. Local rabbinic authority.
13. Adopted by the CJLS on March 25th 1992.
14. Responsum by Rabbi Elliot N Dorff also adopted by CJLS on March 25th 1992.
15. Jewish Chronicle, London, UK, 11th February, 2000.
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Homosexual Relationships - A Halakhic Investigation
matters of life and death.
Rabbi Aharon Feldman, at that time the dean of an ultra-orthodox Yeshivah in
Jerusalem, writes
16
:
A Jewish homosexual has to make a commitment to embark on a
course where he will ultimately rid himself of homosexual activity. It is
not necessary that he change his sexual orientation (if this is at all
possible), but that he cease this activity. It is obvious that for many
people this will be difficult, and will have to be accomplished over a
period of time.
While I would have sought a more liberal expression, on its own terms Rabbi
Feldman's point is well taken: in the overwhelming majority of cases it is completely
impractical to expect the religiously motivated gay man or woman to suddenly adopt
celibacy. In ninety-nine cases out of a hundred, for the religious gay person acutely
felt present needs - emotional and social - must be addressed and given priority. We
must hearken to "the voice of the boy where he now is"
17
. The Gemara
18
expounds this
verse by telling us that in judgment a person is assessed by his present situation. In
which case, we should address the gay person's present needs from the halakhic point
of view, and not what we might or might not consider to be his or her ideal behaviour.
Therefore, the purpose of this investigation is to determine possible halakhic
parameters for those gays who will not embrace the celibacy postulated by Rabbi Joel
Roth and the orthodox world, but who wish to remain active and committed
Conservative/Masorti Jews in their religious orientation. Many of them are in extreme
anguish because of the clash between their natural inclinations and the dictates of
tradition as they have been taught them. In many instances it is a case of
19
hrmuhn hk hut
hrmhn hk hutu - they suffer from the perceived dichotomy between the demands of
tradition and the demands of their nature. Many of these Conservative/ Masorti Jews
want to play a full role in Jewish communal life and feel they are prevented from
doing so by prejudice or well-meaning but outdated directives. This paper is not
addressing the general issue of a halakhic attitude towards homosexual acts, but it is
addressing itself to the specific needs of a religious gay person who identifies with the
ideology and practices of Conservative Judaism and who wishes to live, learn,
practice and perhaps teach this tradition. There is, therefore, much in this paper that
will not be acceptable to a secular gay rights activist.
16. In a letter to a homosexual Ba'al Teshuvah, which was published in the spring issue of Jewish
Action Magazine, 1998.
17. Genesis 21:17
18. Rosh ha-Shanah 16b (I include this note because even if in the Gemara the purpose of the midrash
is the opposite of my present purpose, the conclusion is not so different.)
19. Berakhot 61a
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Dear David
Homosexual Relationships - A Halakhic Investigation
Part 1
(i) Basic prohibitions
I Male Homosexuals
The term used in our classical sources to denote the major homosexual prohibition of
the Torah is mishkav zakhur,
20
rUf z c F J n . This term is now loosely understood as
being the equivalent of "homosexuality", but this is quite erroneous. Mishkav zakhur
refers to one specific act alone and to no other. The Written Torah specifically
prohibits mishkav zakhur twice:
:tuv vcgu, vat hcfan cfa, tk rfz,tu
You shall not copulate with a man as one copulates with a woman: it is
an abomination
21
.
:oc ovhns u,nuh ,un ovhba uag vcgu, vat hcfan rfz,t cfah rat ahtu
If a man copulates with another male as one copulates with a woman,
both of them have acted abominably; they shall be put to death...
22
Rambam
23
gives the following definition of mishkav zakhur:
ohkexb ohkusd ovhba uhv ot vrgva iuhf uhkg rfz thcv ut rfzv kg tcv
///kgcb ut kguc vhva ihc cfa, tk rfz ,tu rntba
When one male copulates with another male ... from the moment of
[anal] penetration ... both are punishable by stoning...
In modern times as well, this quasi anatomical definition is accepted. Here is part of a
responsum by (Ultra-Orthodox) Rabbi Dr Mordechai Halperin, MD
24
:
"Mishkav zakhur, which is one of the worst ,urhcg averot [sins] in the
Torah, refers to penetrative anal sex only. Make all your efforts, use all
your apbv ,ujuf ko!ot ha-nefesh [spiritual powers], to keep from
engaging in this type of sexual behaviour."
Rabbi Elliot N. Dorff implicitly concedes this same point, from the viewpoint of
Conservative Judaism:
Anal sex is not the equivalent of homosexuality or even of homosexual
sex. Both a homosexual orientation and homosexual acts are to be
distinguished from anal sex acts, which are practiced by no lesbians,
some gay men
25
, and some heterosexuals. As a result, if anal sex is
20. Berakhot 43b, Shabbat 17b, 149b, Sukkah 29a, Kiddushin 82a, Avodah Zarah 36b, Niddah 13b.
21. Leviticus 18:22.
22. Leviticus 20:13.
23. Hilkhot Issurei Bi'ah 1:14
24. Shaarei Tzedek Hospital (Shlesinger Institute for Medical Halacha), Israel. 1999.
25. Some people presume that sex between men will involve anal penetration. In fact, in relation to
penetrative sex it has been found that between a quarter and a third of homosexual men have never had
anal sex, either as the penetrative or receptive partner, and in recent years, since it has become clear
that penetrative sex is a particularly risky activity with regard to HIV, quite a lot of men who
previously had penetrative sex have altered their behaviour. - AVERT, 4 Brighton Road, Horsham,
West Sussex, RH13 5BA, England.
In a private poll conducted over the Internet in which more than 150 gay males voluntarily
participated, about 30% of those sexually active reported that they did not practice anal penetration
either actively or passively.
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Homosexual Relationships - A Halakhic Investigation
judged as abnormal in either a descriptive or prescriptive sense, it is
that which we should discuss, not homosexuality or homosexual sex
acts per se.
Failure to make the distinction between the specific 'mishkav zakhur' and the general
'homosexuality' is a major flaw in the responsum of Rabbi Joel Roth.
One colleague whose opinion I value very much challenged my assumption that
what the Torah is prohibiting is anal penetration. He argued that perhaps it is
penetration of the mouth that is meant. While it seems to me obvious that our
halakhic tradition has always understood the penetration to be anal I take up the
challenge. In order not to interrupt the flow of this paper I have included my
response to his challenge in Addendum 1 at the end of this paper.
It is now clear that Halperin is correct is assuming that mishkav zakhur, based as it is
on the biblical phrase mishkevei ishah, indicates anal penetration. If the Torah is
prohibiting the specific act of anal penetration of one male by another; it follows that
the two verses of the Torah are not a blanket prohibition of homosexuality.
26
The gay
male who scrupulously avoids anal penetration cannot be guilty of mishkav zakhur,
and the opprobrium expressed in these verses cannot apply to him.
Mishkav zakhur is a major sexual prohibition. It belongs to the category known
collectively as arayot, ' ,Ih rg forbidden copulations. Like other forbidden acts in this
category it is a capital offence. In former times, when there were courts adjudicating
capital cases according to Torah law, both males participating in this act of anal
penetration would have been sentenced to death by stoning if there had been two
halakhically competent witnesses to the act who had warned the couple that what they
were doing was a capital offence. In the absence of such courts today the participants
are deemed punishable by excision
27
if they do not achieve sincere repentance before
their deaths. It follows that a gay male who wishes to be religiously observant should
make every effort of mind and soul to avoid anal penetration. Everything else is
subservient to this major demand. However difficult it is, emotionally and sexually,
the supreme effort must be made to avoid anal penetration (and, as Rambam stated,
this applies to both partners in the act). This is because all the copulations that are
termed arayot belong to those sins that a person may not commit even if he will lose
26. Other Conservative respondents have made a case for a re-interpretation or new understanding of
the relevant biblical verses. Of these the most important by far is the valiant responsum of Rabbi
Bradley Shavit Artson, which was not accepted by the CJLS. His exegetical approach is perfectly
valid, and his treatment is masterfully exhaustive. My hesitation concerning his responsum is not
regarding what I find in it, but regarding what I do not find in it. My own preference, as I indicated in
the preface, is to base this responsum on the way our sages and rabbis have understood these biblical
verses and associated issues through the ages, without re-interpretation. It is this relation to the details
of rabbinic legislation that I find lacking in Rabbi Artson's responsum. Nevertheless, it is most
important to note that not only do papers such as that of Rabbi Artson display a perfectly valid
methodology, but they have also given us many valuable insights: I would particularly highlight the
substantive difference between "social homosexuality" in earlier periods with modern "emotional
homosexuality" which is the main thrust of Rabbi Artson's contribution. I share his view that our sages
did not comprehend homosexuality as we must understand it today in the light of new psychological
insights. Since his path and mine are different roads to the same goal, they are not mutually exclusive
but mutually complementary. My paper supplies what I find lacking in his and I hope that he would
agree that his responsum supplies what is lacking in mine. Neither of us, I would assume, will
necessarily agree with everything that the other has written; both of us will agree on the general
direction.
27. Rambam defines excision as the complete extinction of the soul at the time of the physical death of
the body (Commentary on Mishnah Sanhedrin 10:1).
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Dear David
Homosexual Relationships - A Halakhic Investigation
his life by refusing to do so.
28
(The three categories are idolatry, illicit copulation and
taking a human life.)
29
Before we leave the subject of mishkav zakhur I would like to address a very human
element into the discussion. What can be said of the person who generally tries to
observe the prohibition of mishkav zakhur but occasionally fails in this? Again, in
order not to interrupt the flow of this paper I have included my hesitant advice on this
matter in Addedum 2 at the end of this paper.
II Female Homosexuals
As we have seen, the act that the Torah prohibits is anal penetration of one male by
another. For obvious anatomical reasons this cannot apply to females. This is the
reason why there is no equivalent female homosexual act which would earn the
participants either judicial death or excision. Nevertheless, homosexual acts between
women were also forbidden by the sages. Their prohibition is based on a rabbinic
interpretation of a verse in the Torah
30
:
thcn hbt rat igbf.rt vagnfu uag, tk vco,cah rat ohrmn.rt vagnf
:ufk, tk ovh,ejcu uag, tk vna of,t
You shall not copy the practices of the land of Egypt where you dwelt,
or of the land of Canaan to which I am taking you; nor shall you follow
their laws.
Rambam
31
codifies as follows:
ruxt vz vagna p"gt /// tuv ohrmn vagnnu ruxt uzc uz ,ukkuxnv ohab
,urxtb iht lfhpk kkf vthc oa iht hrvu sjuhn utk uk ihta uhkg ihekn iht
ahu /// ,ubz itf ihta vzc vkgc kg vat rxth, tku ,ubz ouan vbuvfk
vk xbfvkn lfc ,ugushv ohabv gbunu vz rcsn u,at kg shpevk ahtk
:ivhkt thv ,tmknu
For women to cuddle each other is forbidden as this is one of the
practices of the land of Egypt. However, even though the act is
prohibited it is not punishable ... because there is no specific Torah
prohibition and sexual intercourse is not possible. This is why [such
women] are not prohibited to ... their husbands because of prostitution
... for there is here no such prostitution... A husband should prevent his
28. Mishkav zakhur is but one of the arayot that people generally find difficult to observe. Another, on
the heterosexual side, is the prohibition of copulation between a man and a woman (even one's wife)
who does not bathe regularly in a mikveh after menstruating. This too is punishable by excision if one
dies unrepentant. There is no relative value difference between the two sins from the halakhic point of
view. Let us imagine for a moment a situation that could arise in almost any town or city where Jews
live today. In an apartment block there are two apartments on the same floor. In apartment A live a
man and his wife - a couple who were married through Chuppah-Kiddushin and who lead a decent
Jewish life of observance and synagogue attendance. However, the woman in this apartment does not
bathe in a mikveh every month. In apartment B lives a man and his male partner - a couple who also
try to lead a decent Jewish life of observance and synagogue attendance. Although this couple is gay
they scrupulously avoid anal sex, accepting that it is a sex act prohibited by Torah law, just as is
copulation with a vshb niddah is a sex act prohibited by Torah law. Is it not ironic that the two men in
apartment B are better Jews from the point of view of religious observance than the husband and wife
in apartment A?
29. Rambam, Hilkhot Yesodei ha-Torah, 5:1-2.
30. Leviticus 18:3.
31. Hilkhot Issurei Bi'ah 21:8.
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Homosexual Relationships - A Halakhic Investigation
wife from such practices by forbidding women known [to do such
things] access to her and by [forbidding] her to go out to them.
Since it is not one of the arayot nor are there any judicial or social consequences there
is no need for us to investigate halakhic implications of female homosexuality at this
point, since they can be subsumed in the discussion of male homosexual practices
other than mishkav zakhur and masturbation. However, we should note that it is
significant that the prohibition of the sages seems to assume that the women involved
in these activities are married (to men).
(ii) Secondary considerations
We may now examine the halakhic status of other sexual acts open to a gay couple.
a) Procreation.
I Male Homosexuals
The Shul!an Arukh states
32
:
,ucrku ,urpk hsf vat tahk ost kf chhj
A man must marry a woman in order to procreate...
Does this requirement, sequentially the first of the 613 mitzvot of the Torah, apply to
gay males? Some time ago I was sent the following information whose provenance is
as yet unclear to me (but see note 34).
In an interview in the documentary "Trembling before God" Rabbi
Aaron Feldman in Jerusalem, tells a story about the Brisker Rav
33
.
Here is the condensed version: a gay man came to him. The Brisker
Rav said he is exempt from the mitzvah of getting married and
procreation since he doesn't have these drives
34
.
This seems eminently appropriate. It would be cruel in the extreme to impose
marriage on a man for whom any sexual encounter with a woman would be totally
distasteful and probably a physical impossibility because of the constraints of his
psychological and emotional complexion. It would be cruel not only to the man but
also to the woman he marries. The Brisker was obviously referring to the fact that a
gay man does not have a constitutional sexual attraction towards women: he is just
not programmed that way. He is sexually attracted towards other men as naturally and
a surely as straight men are attracted towards women. The Brisker must have
intuitively perceived that this sexual orientation is not something of the gay man's
choosing, but something imposed upon him by some mechanism beyond his control
and beyond his understanding
35
.
When a person's actions are influenced by a power beyond his control this is called
"constraint", c :s, by our sources. We shall return to the halakhic implications of
32. Even ha-Ezer 1:1.
33. Rabbi Chaim Soloveitchik (1853-1918).
34. This account was communicated to me privately and I have no reason to doubt the essential
authenticity of the account. However, to the best of my knowledge, this comment was not included in
the final version of the documentary "Trembling Before God". Possibly it ended up on the cutting
room floor. I hope to receive clarification in this matter from the director of that documentary, Sandi
Simcha Dubowski.
35. This is also true of the heterosexual orientation, of course, but this is not usually appreciated since
the heterosexual drive is the norm assumed by humanity in general and by Torah in particular.
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Dear David
Homosexual Relationships - A Halakhic Investigation
'constraint' later on in this paper; however, I think that this is a point that should be
borne in mind also when dealing with the plain meaning of the Torah when it deals
with male homosexuality. In the famous 'discussion' between Rabbi and Bar-Kappara
in Nedarim 51a the biblical word vcgu, (Leviticus 18:22) is interpreted by
Bar-Kappara as indicating vc v,t vgu,. In his commentary on this phrase RaN
explains that the phrase criticizes husbands for forsaking their legitimate wives in
order to seek out other men: :rfz kmt lkuvu vat hcfan jhbna. The Tosafists agree with
this interpretation and make it even more specific: cfan kmt ihfkuvu ivh,uab ihjhbna
rufz - They forsake their wives and seek out copulation (mishkav zakhur) with men. I
think that according to this interpretation the whole conversation can be readily
understood as Bar-Kappara hinting severely that he disapproves of Rabbi marrying
off his daughter to Ben-Ellissa for the reasons implied. It is always useful to bear in
mind who is the 'thou" when we encounter a 'thou shalt' or a 'thou shalt not'.
According to these Rishonim the prohibition of the Torah against mishkav zakhur is
directed against men married to women. Be that as it may, we may certainly note that
there is no hint of moral turpitude in the comments of these Rishonim. This
interpretation while possibly shedding light on the problem of the gay man could shed
darkness on the problem of closet gays married to women. However, that is not the
subject of this paper
36
.
II Female Homosexuals
Women are not obligated to marry and procreate. Rambam
37
states this clearly and
succinctly:
vatv tk kct vhcru vhrp kg vuumn ahtv
Men are commanded to procreate, women are not.
Therefore, for a woman for whom conjugal life with a man is distasteful there is no
compulsion to submit to marriage and procreation.
b) Other sexual activities.
Other sexual activities would include masturbation (including fellatio), hugging,
kissing and so forth. Of these, only masturbation and fellatio are strictly male
activities, so we shall address them first. After that we shall relate to the other
activities which are common to both gays and lesbians.
I Male homosexuals
(1) Masturbation.
36. I recently discovered another of the Rishonim who gives a similar interpretation to the verses in
Leviticus. In his book "Beyond Reasonable Doubt" my teacher, Rabbi Louis Jacobs, brings the strange
"Lange Case", in which part of the then ultra-orthodox establishment tried (successfully) to have
certain passages removed from a book compiled by Dr I Lange. The book is concerned with the
teachings of Rabbi Yehudah he-"asid (mentioned elsewhere in my present paper in a different
context). Subsequent editions of his book were bowdlerized, but the original edition is in the
possession of Rabbi Jacobs, and he has been kind enough to provide me with the exact words of Rabbi
Yehudah he-"asid concerning the verses in Leviticus that are the subject of our present discussion.
They are, perhaps not surprisingly, very similar in purport to those of other Rishonim already quoted:
vhrp unhhehu ohab utaha rucgc kfv vnvcv ,t gcrk tkau rfz ,t cfak vru, vrxta vn
///vhcru
The Torah prohibits Mishkav Zakhur ... so that they will marry women and keep the precept to be
fruitful and to multiply...
37. Hilkhot Ishut 15:2.
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Homosexual Relationships - A Halakhic Investigation
Masturbation is termed in our classical sources hash!atat zera,
38
g r z , , j J v or
hotza'at zera le-vatalah
39
, vk Y c k g r z , t mIv. This means that the effect of the action
is to expel semen for a purpose other than procreation and into a receptacle other than
a womb. Masturbation is prohibited by the Palestinian Amora Rabbi Yo!anan in the
Talmud
48
and he bases himself on the death of Onan as described in the Torah
40
. The
Shul!an Arukh
41
(under the influence of the Zohar
42
) prohibits this activity in
hyperbolic language:
ukt ///vru,ca ,urhcg kfn runj vz iugu vkyck grz ,cfa thmuvk ruxt
tkt tuv kusd ruxhta ovk hs tk grz ,cfa ohthmunu shc ohptbna
///husbc vz vaugva
It is forbidden to masturbate. This sin is more serious than all the other
sins in the Torah... It is not enough that those who 'fornicate with their
hand' ... are committing a grave sin; they must also be
excommunicated...
If, in addition to mishkav zakhur, this activity also is denied the gay man he will be
left with almost no physical means for the relief of sexual tension and for sexual
expression, which will have possibly dire consequences, ranging between mental
anguish, emotional instability and suicide
43
. One ultra-orthodox gay man has said:
And so the options for people who are homosexual basically come
down to becoming completely secular, or accepting that we will be
forced to violate certain Torah laws in order to function, or committing
suicide. Certainly not an enviable choice to have to make.
44
Despite the uncompromising language of the Shul!an Arukh as quoted above there
are halakhic possibilities that will permit a gay man sexual expression through
masturbation. The most direct possibility is to follow the line of thought of Rabbenu
Tam
45
that anyone who is exempt from the mitzvah of procreation is not bound by the
prohibition against masturbation. Since we have accepted that gay men are exempt
from the mitzvah of procreative marriage it would follow that they are not bound by
the prohibition against masturbation. However, no other exup posek has taken this
line of thought, and while Rabbenu Tam is certainly great enough to rely on as it
38. Onanism is a misnomer for masturbation as it properly denotes coitus interruptus, and thus is of a
peculiarly heterosexual application.
39. Niddah 13a
40. Genesis 38:10
41. Even ha-Ezer 23:1-2.
42. Zohar, Part 3, 90a
43. Although my own circle of acquaintance is limited, I personally know of two gay young men who
attempted suicide, one at the age of 13 and the other when he was 14 and again when he was 23.
Twelve independent scientific surveys, conducted between 1972 and 1992, and covering a total of
1537 cases, indicate a mean age for a first suicide (or suicide attempt) as 19.3 years, the percentage of
the general sample that attempted or accomplished suicide was 31.3%, and the percentage of attempts
that were repeated was 39.6% In addition, the following is reported by APS [August 26th 2001]
concerning teenage homosexuality in the State of Israel: "The number of attempted and actual suicides
among homosexual youths is believed to be three to six times as high as those among heterosexuals,
according to a report published ... by the Political Council for Gay Rights in Israel... According to the
report the gay community in general suffers disproportionately from sexual diseases, AIDS, stress,
smoking, use of drugs and alcohol, and exposure to the sun."
44. K. J Sanders in a comment in an Internet discussion.
45. Yevamot 12b s.v. Shalosh.
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Homosexual Relationships - A Halakhic Investigation
were, it would be prudent also to search for another avenue of approach as "back up".
In his commentary on that hyperbolic statement of the Shul!an Arukh, Bet Shemu'el
46
points out that the hyperbole in the statement is misleading. Sefer "asidim
47
of Rabbi
Yehudah he-"asid had already pointed out that there were circumstances where not
only was masturbation permitted but should be seen as preferable.
,at og cfahk tyjh ip trhu uhkg rcd,n urmha hn 'ktaa sjtc vagn
'vsb u,at og ut 'aht uk ,uruxtv ,uhrg rta ut
57
ugrz thmuvk kufh ot '
cyun aht ,ata 'thmuvk uk ah vga v,utc uk chavu 'tyjh tka hsf
///vatc tyjh ktu grz ,cfa thmuha
One person asked whether someone whose sexual drive was getting the
better of him and he was afraid that he might sin by copulating with a
married woman or his menstruous wife or any other of the arayot that
are forbidden to him
48
whether he could masturbate so that he might
not sin. The response was that in such circumstances he should
masturbate, for if it is a married woman it is preferable that he
masturbate rather than sin with the woman...
In his commentary "okhmat Shelomoh on that same paragraph in the Shul!an Arukh,
Rabbi Shelomoh Luria goes even further, and suggests that it might even be a mitzvah
to perform a lesser sin in order to avoid a greater sin.
otu /// grz ,cfa iug kyck cyun zt vz ut vz rujck ,urhcg h,a aha hfhv
uk cajb hrv vag tku vsb ut aht ,at iudf vrhcg rcs ushk tcc if
/lf rucg grz ,cfa thmuvk uk r,un lfk /// vumn vaugf
When there are two sins to choose between, either this one, or a more
serious one, it is better that he disregard the prohibition of
masturbation ... So, if it was possible for him to commit a sin, such as
having intercourse with a married woman, or a woman during her
menstruation, and he didn't do it, he is considered like someone who
did a mitzvah... and therefore, it is permitted for him to spill his semen
for this reason.
We have established that anal penetration is one of the arayot forbidden by the Torah
and must be avoided by gay men. Therefore, according to the thinking of Rabbi
Yehudah he-"asid, masturbation as an alternative to mishkav zakhur is to be
condoned; and according to Rabbi Shelomoh Luria if the masturbation succeeds in
preventing the sin of mishkav zakhur then it might even be regarded as a mitzvah! It
might also be possible that this is influenced by the enigmatic statement of Rabbi
Yehudah ha-Nasi
49
:
/vsxpv sdbf vrcg rfau 'vrfa sdbf vumn sxpv cajn huvu
... Calculate the loss of a mitzvah against its reward and the reward of a
sin against its loss...
50
In spite of the above statements it is highly unlikely that any of the authorities
46. Rabbi Shemu'el ben-Uri Shraga Faivush, 17th century.
47. Siman 176.
48. My emphasis.
49. Avot 2:1
50. See the commentary of Rambam ad loc.
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Dear David
Homosexual Relationships - A Halakhic Investigation
mentioned intended the heter
51
to be anything more than occasional, in time of acute
temptation
52
. Is it possible to see this heter as ongoing in homosexual circumstances?
I believe that we can indeed say so, because it is but natural that a religious gay man
will seek out a partner and a relationship. Under those circumstances the temptation
of mishkav zakhur is a constant one, and the heter of masturbation is a constant need.
The gay man's emotional health depends on it, and we should bear in mind that if both
masturbation and anal penetration are denied him the religious gay man will in all
probability forsake religious observance entirely. The wise posek too will "calculate
the loss of a mitzvah against its reward and the reward of a sin against its loss.
Other poskim seem to have derestricted the prohibition of masturbation even more.
Maharshag
53
in a responsum
54
concludes that masturbation is prohibited only when it
is entirely to no purpose. In the cases that are the subject of our present discussion
masturbation has the very important purpose of replacing or displacing anal
penetration. Another authority
55
also restricts the hyperbolic condemnation of
masturbation by the Zohar and the Shul!an Arukh, and refers the condemnation to a
completely different - heterosexual - sin:
trec v,hn ch,fs ibutu rg vagnf .ujc vruzu ohbpcn asc hrhhn rvuzcs
uhbpk ,bnuzn vumnva ihsv ifu /vru,ca ,urhcg kfn runja rnte vz kgu
hrhhn ohshxj rpxc kct /utruc ,umn ohhek grz i,b h,kck ucegc asu
ouen kfn /// tuv kusd iuga cd kg ;t /shc ;tbnu uhbpk ,bnuzn u,at ihta
urp ,umn kycn ubht hf ihs ,hc ,u,hnu ,u,hrf hchhj rtaf lf kf runj ubht
///ucru
The Zohar must be referring to 'coitus interruptus', ... and it is in
reference to this that it says that it is the worst of all the sins of the
Torah ... for the mitzvah [of copulation with his wife] is right there
waiting [for fulfillment] and he degrades it by not depositing his semen
in fulfillment of the command of his Creator. But the Sefer "asidim
56
is concerned [with a situation where] his wife is not available and
therefore he masturbates; even though this may be sinful ... it is not as
serious as those sins that require excision and capital punishment,
because he is not negating the mitzvah of procreation...
Thus, only to a married man in the presence of his wife would masturbation be
completely prohibited, and that prohibition would then have no relevance at all to our
present thesis. It therefore seems that there is ample support for masturbation scghsc as
a "replacement activity" for mishkav zakhur. Additional halakhic issues that are
involved in mutual masturbation will be considered later on.
II Male and Female homosexuals
(2) Physical expressions of affection (hugging, kissing and fondling).
51. Permission.
52. It is my view that the original intention of the prohibition against vkyck grz ,tmuv (including that
of the Zohar) was directed against coitus interruptus, and I think that it is clear that the poskim who
question the hyperbole of the Shul!an Arukh were aware of this, as their quoted statements make clear.
If this view is correct the whole issue of masturbation has no relevance to our discussion.
53. Rabbi Shim'on ben-Yehudah Gruenfeld (1881-1930)
54. Siman 243.
55. Atzei Arazim #101 (quoted in Otzar ha-Poskim on Even ha-Ezer 23:1).
56. Previously quoted by us, page 12.
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Homosexual Relationships - A Halakhic Investigation
The Torah
57
stipulates:
///vurg ,ukdk ucre, tk urac rta kf kt aht aht
None of you shall come near anyone of his own flesh to uncover nakedness.
Rambam, basing himself on a very appropriate midrash in the Sifra
58
, states
59
that this
is a Torah command that requires everyone to maintain a complete physical distance
from any possibility of contact with arayot. Thus Torah law would strictly forbid
hugging, kissing and fondling someone such as a sister or aunt. (Indeed, a special
exception had to be made to permit a man to have any kind of physical contact with
his own mother!) This requirement does not seem to have been strictly enforced even
in talmudic times. In the Gemara
60
we read that one trunt Amora, Ulla, when
returning from the Bet Midrash would kiss his sisters on their breasts! This is
emended by the Gemara to "on their hands", but according to the law as stated by
Rambam this would make no difference, since either limb is forbidden him!
In his animadversions on Sefer ha-Mitzvot, after analyzing several sources, Ramban
claims that Rambam is wrong, and that the prohibition he describes is only rabbinic,
mi-de-rabbanan, ib C r S n, and not mi-de-orayta, t , h rIt S n.
(3) Constraint, x bt
Before we attempt to resolve this ,eukjn, difference of opinion between Rambam and
Ramban, we must reconsider, and in much greater detail, the halakhic parameters of
the condition of x bt, constraint. We have already noted that sexual orientation, being
a function beyond the individual's conscious control is a kind of constraint. When one
is prevented from observing a certain commandment because of some contrary force -
human, psychological or medical - we consider this to be 'constraint'.
Rabbi Yosef Engel
61
writes most eloquently in this regard
62
:
hn ,t lt chhjnu uh,uhrc og thburyc tc v"cev ihts ,b,ub trcxv vzcu
er ostvn aecn v"cev ihta kkf chujn ubht xubtu vumnv ohhek kufha
vagba vmra sckc w,h ubumr smn lt tuv cuhjv rehg kfs ///u,kufhca vn
iht xubt kg if kg /uh,uumnu w,h ubumr ,uagk ohchujn ubjbtu tuvv rcsv
tku ohhek kufha hnn er vmur v"ceva kkf vumnv ihhbg uc ihtu kkf cuhj
vhcru vhrp ,umnc vbv :,tz trcxc cyhv e"usu ohhek u,kufhc ihta hnn
/hrndk vbnn ryup xbutv tkhnn ///
It is quite logical to assume that God has no complaint with His
creatures [when they cannot fulfill a mitzvah because they are not able
to]. God places a duty only on those who are able to fulfill the mitzvah.
Someone who is under constraint is not required to fulfill a mitzvah at
all, because God only demands of a person what he is capable of
doing... A command is only a command because it is God's will that we
do that thing and we are required to fulfill God's will and His
commandments. That is why the person who is under a constraint is
57. Leviticus 18:6.
58. A!arei 13.
59. Sefer ha-Mitzvot, Lo Ta'aseh 353.
60. Shabbat 13a.
61. 1859-1920.
62. Atvan de'Orayta, Siman 13.
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Homosexual Relationships - A Halakhic Investigation
not commanded, the command does not apply to him at all, because
God only wants those who are able to fulfill [a commandment to do so]
and not someone who is unable to fulfill it... Procreation is a positive
command and therefore the person under a constraint is completely
excused.
What does someone being under constraint mean here? The Hebrew term is xUb t.
This refers to someone who is unable to fulfill a mitzvah because of some constraint
over which they have no control. That constraint could be as severe as a gun pointed
at one's head or as common as not being able to fulfill a certain mitzvah because of
the constraint of temporary illness. Homosexual orientation is also a kind of
constraint
63
.
It is often claimed that even if the homosexual emotional complexion is a kind of
constraint, that could not justify halakhic legitimization any more than we could
legitimize other deviationary behaviour. For example, in a responsum
64
Rabbi
Reuven Kimelman argues that
one could easily imagine somebody contending that he is sexually
functional only with other married women or with his daughters... If an
analogy is in order, kleptomania may ... be an instructive one. Feeling
that what is their own cannot have much worth, kleptomaniacs take
things precisely because they belong to others. Notwithstanding our
compassion for the low esteem that generates the characterological
problem of kleptomania, we still cannot condone the stealing.
This kind of reasoning falls down on the central point: pedophilia and kleptomania
(and so forth) are recognised psychological disorders; they are pathological; they are
illnesses of the psyche; therefore they cannot be justified halakhah whose norms and
standards reflect the healthy human psyche.
65
Even though it is certainly not the
condition of the majority of the human race, homosexuality is not a pathological
condition of the psyche, and this has been stated and reiterated many times by the
competent medical authorities and appropriate professional bodies
66
. The comparison
with adultery, pedophilia or kleptomania is a red herring. A better comparison would
be with people who are left-handed: in earlier times the left was considered to be
'sinister' (the Latin word for 'left') and in our own mystical tradition it was known to
be 'the other (sinister) side'. But halakhah does not discriminate against left-handed
people because they have a natural and non-pathological condition that deviates from
the norm; but it does legislate for their particular needs when necessary (for instance
63. Of course, it is a constraint in exactly the same way as heterosexual orientation is a constraint. The
difference is that the constraint of heterosexuality is the assumption of Torah.
64. Also adopted by the CJLS on March 25th 1992.
65. An esteemed colleague has raised a very valid query in this regard. "Your arguments about
medical/psychological acceptance of same-sex orientation as organic and ... other kinds of orientation
as pathological are defensible only in contemporary context... So if I accept the notion that our
understanding of human sexuality has evolved, what is to prevent later research from determining that
genetics or environment may produce a permanent 'imprint' of a more specific nature... Are we, by
your logic, on a road to the 'consenting (halakhically-defined) adults' standard if the consensus of
medical science explains sexual appetite as less voluntary than we imagine?" My response to this
query is simple. In talmudic terms I would say hnb hfv: whatever the future consensus of respected,
authoritative and persistent scientific opinion on any matter might be must be taken into account by an
evolving halakhic system such as is that of our movement.
66. See note 71.
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Homosexual Relationships - A Halakhic Investigation
on which arm to bind ihkhp, tefillin).
We do not know why some people are homosexually orientated. To the vfkv
halakhah it is immaterial what the etiology of the condition is (and experts have so far
reached no consensus on this matter). It is clear that it is a psychological and
emotional mindset that directs a person's sexual drive and over whose existence and
influence the individual has no conscious control: these feelings and tendencies are
just there. In homosexuals the drive is as innate and as demanding as is the
heterosexual drive in heterosexuals. In this sense we must accept that the gay person
is the way he or she is because that is God's will for them. If they have no control over
their emotional complexion in this matter they are to be regarded as acting under x bt,
constraint, from the halakhic point of view.
67
People who are in such a situation with
regards to a certain mitzvah they cannot force themselves to perform it or cannot
prevent themselves from disobeying it - are exempt from that mitzvah as long as the
impediment that is beyond their control exists.
If a person sins because they are under a constraint, even if the sin involves arayot
(such as mishkav zakhur) and they were not brave enough to die rather than commit
the sin, even though they have profaned God's name they are not liable for their
action to any human court.
68
If this is the case as regards arayot it obviously follows
that it is all the more true in the case of lesser sins. Furthermore, if a person sins under
constraint, as regards their other rights and privileges they are no different from any
other Jew
69
.
Rambam writes:
:uthe kg ca ckff tuv vbv vaug ubhtu /// uapb yknk kufh ot
Anyone who can escape [from the constraint under which he suffers]
and does not do so is like a dog staying in its own vomit.
70
We can easily see that this might indicate that the homosexual tendency does not
qualify as x bt, constraint. For if the gay person can extricate himself or herself from
the constraint through therapy then he or she can no longer be considered as being
under constraint: they can remove the constraint. However, the facts cannot be
denied. The medical profession does not consider homosexuality to be a mental
disorder and holds that therapy doesn't work and therefore cannot be considered as a
means by which the gay person can release himself or herself from the constraint of
their sexual orientation.
71

67. He is 'constrained' because he is not the author of his sexual orientation and cannot change it. This
does not imply that he is not in control of his sexual behaviour.
68. Rambam, Hilkhot Yesodei ha-Torah 5:4.
69. Rivash Siman 4 and 11.
70. Rambam, ibid.
71. Resolution: 9 (I-99) American Medical Association, October 1999... Subject: Development of a
Policy Statement on Sexual Orientation Reparative (Conversion) Therapy...
Whereas, Numerous organizations have recently used mass media such as newspapers and television
to make dubious claims about changing the sexual orientation of homosexual individuals through
prayer and other means; and
Whereas, The studies by Evelyn Hooker and Marvin Siegelman did not reveal any differences in
psychopathological tendencies or neuroticism between homosexual and heterosexual subjects; and
Whereas, The aforementioned studies above and others findings were the basis for the American
Psychiatric Association to remove homosexuality from its list of mental disorders in the Diagnostic and
Statistical Manual in 1973, with the American Psychological Association to follow with a similar
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Homosexual Relationships - A Halakhic Investigation
Rabbi Elliot N. Dorff already foresaw this last point in his responsum in 1992:
...The simple fact is that all of the organizations of our time which
embody relevant expertise on these issues have officially said that
homosexuality is not a sickness and that, in any case, it is not
reversible. Of course there are individual psychologists or
psychiatrists who hold some other view, but to cite them, as Rabbis
[Joel] Roth and Norman Lamm do, is to choose what are by now
isolated opinions in the world of psychology to buttress their weak
scientific case. It is just like quoting some of our Conservative rabbinic
colleagues who think that we should accept patrilineal descent and then
pretending that that is the policy of the Conservative Movement. Like
it or not, the clear evidence of the psychological community - clearer
now than when they took their respective actions in the mid-1970s - is
that homosexuality is not an illness and that it is not reversible.
However, even if we were to decide that there is no way at all to condone any of the
other activities (which, of course, is far from the case as we have already
demonstrated) nevertheless there would still be an understanding that apart from the
major sin of mishkav zakhur none of the other sins associated with a homosexual
relationship require one to give up one's life rather than commit them.
In the Gemara
72
, the Amora Rava states that the human male must always be held to
be in control of his sexual behaviour - even when under external constraint - since he
can only have an erect penis if he wishes it. First of all we must note that Rava is
speaking of an external constraint (such as when one is forced to do something at
gunpoint); our particular context is different and the constraint is internal. However,
according to the line of thought of Rava one could never apply the consideration of
constraint to mishkav zakhur. Several rishonim
73
question the possibility of applying
this opinion of Rava in all situations
74
, but all from the point of view of an external
constraint. Today, any male - straight or gay - will vouch for the fact that he can have
an erection even at moments that cause him the most acute embarrassment! (Ask any
teenager.) Indeed, one of the rishonim
75
wrote that in some cases we can apply the
action two years later; and
Whereas, A review by Douglas Haldeman revealed that homosexual subjects who have undergone
reparative (conversion) therapy failed treatment, since such subjects who had supposedly converted to
heterosexuality still demonstrated sexual attraction to the same gender; and
Whereas, The film documentary One Nation Under God exposed the programs of reparative
(conversion) therapy organizations to be fraudulent and inductive of psychological scarring in patients
who have tried it; and ...
Whereas, The Gay and Lesbian Medical Association, the American Psychiatric Association, the
American Psychoanalytic Association, the American Academy of Pediatrics, and the National
Association of Social Workers, all have policy and position statements condemning reparative
(conversion) therapy either as harmful, ineffective, or unethical, or discusses the issue of societal
homophobia as the real cause of a patients discomfort with his or her sexual orientation rather than
trying to change sexual orientation itself; therefore be it
RESOLVED, That the AMA does not support sexual orientation reparative (conversion) therapy, but
rather supports efforts to address homophobia.
72. Yevamot 53b.
73. Early medieval authorities.
74. Tosafot ad loc, Rashba ad loc, Rivash 4, 11, 387, Maggid Mishneh on Hilkhot Issurei Bi'ah 1:9.
75. Rivash Siman 387.
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Homosexual Relationships - A Halakhic Investigation
principle expounded from the Torah
76
ovc hju, "And live by them [the
commandments]" - and not die by them."
77
It is particularly important to bear this in
mind in connection with gays because the suicide rate among gays is far higher than
in society in general.
78
However, even if we have to accept the statement of Rava, this
would only apply to mishkav zakhur, and even according to him we could condone
the commission of an "ordinary" sin in order to save a person's life (and also their
sanity, mental health and emotional stability).
79
Nor is there any cause to deny the potency of the c :s, constraint, simply because of
the pleasure that the act it compels may generate. Rambam
80
writes that if a woman is
raped she is held to be innocent even if at some point during the rape she begs that the
rapist be allowed to continue because of the pleasure she is feeling. "Her own nature
is constraining her."
81
However, accepted halakhah does not apply this to males
because of the presumed anatomical phenomenon that no man can produce an
erection if he is not sexually aroused.
82
(See our comment above.) This is why one
could not reason that mishkav zakhur is permitted because of constraint: the erection
is considered to be an indication of willingness. However, there is no reason why the
consideration of constraint should not apply to all cases that are not arayot.
Now we can return to the difference of opinion between Rambam and Ramban in
connection with rac cure keruv basar, [physical contact] (see page 14).
Even if Rambam is correct that this is prohibited by force of Torah law this would
still mean that the gay person, acting under the constraint of his nature, would not be
held culpable for not observing this commandment. If Ramban is correct that it is only
mi-de-rabbanan then it is even easier to make this claim. We have already seen that
under the circumstances to which we are relating even masturbation would be
permitted as an alternative to mishkav zakhur. From there it would be a short step to
apply the logic of a kind of reversed rnuju ke kal va-!omer: if masturbation is
permitted to prevent mishkav zakhur could not keruv basar [physical contact] be
permitted for the same reason? Under such circumstances, keruv basar would not be a
dangerous preface to a completely forbidden activity, but a replacement activity that
is intended to displace the greater sin of mishkav zakhur.
Everything that I have written above in connection with keruv basar is in order to
relate to halakhah as it has been handed down to us. However, a Conservative rabbi
76. Leviticus 18:5.
77. Kohelet Rabba 1:24.
78. A survey of Australian senior high school students, announced in December 1999, has found that
more than 6% of them have homosexual feelings, the Sydney Morning Herald reports. The study was
conducted by researchers at La Trobe University and was published in the Australian and New Zealand
Journal of Public Health. The researchers, who canvassed more than 3,500 students in grades 10
through 12 in 118 schools throughout the country, found that students who admit to same-sex feelings
are up to four times more likely to engage in destructive behavior, including binge drinking and
intravenous drug use. Of the students surveyed, 6.3% said they are attracted to members of their own
sex...
79. This by inference from the right of a pregnant woman to abort her fetus if carrying to term would
seriously endanger her health, mental health, or emotional stability.
80. Hilkhot Sanhedrin 20:3.
81. This is a most perceptive remark and it seems to be entirely that of Rambam, since his source for
this halakhah, Sanhedrin 73b, gives a different reason for the woman's request. In the context of our
general discussion Rambam seems to be making here a most important contribution.
82. Yevamot 53b.
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may also take into account the mores of his constituency. I do not think that it would
be an exaggeration to say that even the most conservative of Conservative male rabbis
today would not balk at shaking a woman's hand, nor would he refrain, at moments of
great emotion - joy or sorrow - from publicly hugging and even kissing a woman to
whom he is in no way related. I strongly suspect that in all segments of Conservative
Jewish society masturbation is not looked upon as an unforgivable sin, under any
circumstances. Therefore, if a Conservative halakhist were to raise objections
concerning masturbation and keruv basar in the case of homosexuals alone it would
be nothing but halakhic hypocrisy.
One argument that is often leveled against this line of halakhic thought is based on
case reciprocity. For example, would we permit or condone sexual foreplay between a
man and a married woman who is not his wife on the understanding that this foreplay
is intended to displace vaginal penetration? Obviously not! So why, we are asked,
should such behaviour become condoned in the case of same-sex unions?
I think that however cogent this line of reasoning appears at first blush such an
argument must fail after greater thought. The adulterous union is completely
forbidden but the parties have other means to express their sexuality. If the woman is
divorced from her husband before sexual activity with her lover there is no halakhic
bar to sex between them. All they have to do is wait and be patient. Apart from the
gay person there is no one in the whole breadth of compassionate Jewish life to whom
halakhah, as heretofore interpreted, says, "you may never, ever, under any
circumstances, find legitimate sexual expression and enjoy physical love". In our own
movement we have adopted solutions to solve the plight of the vbudg agunah (who
otherwise would come nearest to the gay person as someone denied all sex except
with her missing or recalcitrant husband). From the point of view of sexual fulfillment
(which is, after all, a basic component of the human biological and emotional setup)
the gay person must be viewed halakhically sub sui specii, as a unique halakhic
entity.
83
The alternative to condoning some homosexual acts is to condemn the observant gay
person to a life without any possibility of expression of physical love. Experience
teaches us that the results of such repression could be anything from emotional
instability, neuroses and drug addiction right through to desperate self destruction.
This cannot have been the intention of Torah, which is okugc sxj "kindness in the
world". Rabbi Elliot N. Dorff, in his 1992 responsum, emphasizes this point most
effectively:
...I, for one, cannot believe that the God who created us all created ten
percent of us to have sexual drives which cannot be legally expressed
under any circumstances. That is simply mind-boggling - and, frankly,
un-Jewish. Jewish sources see human beings as having conflicting
urges that can be controlled and directed by obedience to the wise laws
of the Torah; it is Christian to see human beings as endowed with urges
83. "The only other places where the Torah comes remotely close to the situation of the homosexual
are a few pathological instances (don't tell me about mamzerim - a mamzer can always find a
mamzeret, or a convert, or a Gentile bondwoman). A widow of a High Priest, for example, may not
have sexual intercourse ever again, for the rest of her life. And a widow of a king almost always finds
herself in the same situation, because a king's widow may only marry another king, to whom she is
usually forbidden for reasons of incest. Those are the only situations I can think of where the Torah
forbids someone to have sexual intercourse for the rest of his life..." [A comment posted on an Internet
discussion group].
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that should ideally be forever suppressed. It makes of God a cruel
director in this drama we call life, and our tradition knew better. It
called God not only merciful, but also good. God's law, then, must
surely be interpreted to take those root beliefs of our tradition into
account.
If we had found no possibility whatsoever of condoning these acts in homosexuals we
would have been forced to admit that they have no remedy. But we have
demonstrated that it is possible within the halakhic framework to indicate ways in
which such acts can be understood and condoned. To ignore these possibilities is
tantamount to cruelty. The author of the Sefer ha-"inukh
84
says:
ovk hutr 'ohbnjr hbc ohbnjr /// ova ktrah hbcku 'ck gur ot hf vz ihta
/,uhrcv og sxj ,uagk
This is nothing but heartlessness. For Jews, who are ... merciful
people, descendents of merciful people: it is fitting to act kindly
towards people...
And the Gemara
85
tells us that our people are distinguished by three traits: we are
merciful, shy and charitable. And that should be towards gay people no less than
towards any others. And this, surely, must be my response to those who would deny
the legitimacy of that which this paper attempts to do. When something has been
considered to be prohibited for centuries, millennia, it is very easy to make out a case
for taking no action whatsoever, just to leave the Torah prohibition intact with no
liberal interpretation attempted. But the much more difficult path of attempting to
find a permissive road on the halakhic highway is, in my view, mandated by the
consideration of !esed - sheer human kindness. It is surely more laudable to adopt the
path of ;hsg trh,vs jf
86
- the permissive ruling is to be preferred.
(4) Mutual Masturbation, fellatio etc.
We now approach the issues that are involved when two gay people do to each other
what we have already seen above would be condoned when practiced by an individual
as a "replacement activity". The basic problem here is whether inviting someone to
participate in such acts constitutes "aiding and abetting"
87
, or "putting a stumbling
block before the blind"
88
. Is it possible for a religiously motivated person to invite
someone else to participate in an activity that is still technically sinful (even if
condoned)?
The classical place where this is discussed is in the Gemara
89
, where the question is
posed whether it is permitted to pass wine to a rhzb nazir
90
- a person who had taken
upon himself for a specific period of time the stringencies of not partaking of alcohol
or cutting his hair. If the nazir drinks the wine he has committed a sin (by breaking
his religious oath of abstinence). By passing the wine to him or selling it to him (even
at his request) am I "aiding and abetting" him in a sinful act? The answer of the
Gemara there is clear: you would not be aiding or encouraging him in his wrongdoing
84. Mitzvah 44.
85. Yevamot 79a.
86. Berakhot 60a, Betzah2b.
87. This is called in our sources :av :a:v + vco
88. Leviticus 19:14.
89. Avodah Zarah 6a-b.
90. Numbers 6:1-21.
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Homosexual Relationships - A Halakhic Investigation
if he were going to do it any way. You would only be doing wrong if the only way he
would commit this sin is through your complicity. If the nazir does not buy wine from
one person he will buy it from another! The implications to our present discussion are
clear.
Modern respondents discuss the issue. For example, Rabbi Moshe Feinstein
91
was
asked whether it was permitted for an ultra-religious catering company to cater a
wedding in a banqueting hall when they knew that the guests would later engage in
mixed dancing. His responsum contains the following clarification, which can serve
as a parameter:
kg shznc rcugaf kct dduac rcugc tkt uahrpvk ihuumn iht ktrah o,x
uahrpvk vumn rjt ktrah iht rnun ubht ukhpt vrhcg uzht
A Jew (any Jew) is only required to prevent someone else committing a
sin in ignorance. When the other person would do it anyway he is not
required to take action to prevent them from doing so.
Other modern poskim
92
reach similar conclusions and we can summarize as follows:
It is not wrong to comply with the wishes of someone wishing to commit a sin if they
would violate the prohibition anyway, without your involvement; and they are aware
that what they are doing is the violation of a prohibition.
All this, of course, is under the assumption that what the gay person is doing is
wrong. We have already demonstrated that there is ample room for accommodation to
their special needs through halakhically condoning them. However, it is quite clear
that any gay person who suborns someone who is not of that orientation to join them
in acts which are condoned only when done by homosexuals is in grievous breach of
several mitzvot of the Torah: he or she is putting a stumbling block before the blind, is
inciting to commit a sin
93
and is also probably "aiding and abetting" the commission
of a sin. Obviously, therefore, halakhah must prohibit a gay person from
propositioning a child or adolescent - or even from accepting a proposition from
them.
SUMMARY of Part 1
The rabbinic prohibition of female homosexuality seems to have been directed
towards married women. However, be that as it may, since there are no halakhic
consequences involved in the disapproval of the sages there seems to be good reason
for not applying that prohibition to women whom we now understand to be living
under the constraint of the homosexual mindset. For the gay male mishkav zakhur,
anal penetration, is forbidden at all times and under all circumstances; even the
consideration of constraint has no weight here. Masturbation can be halakhically
condoned as an activity that will displace mishkav zakhur. The gay male is excused
the duty of marriage and procreation, a duty that was never placed on females at all.
Kissing, hugging, cuddling and fondling are condoned in view of the fact that
homosexuals (of both sexes) are living under a natural constraint (and in Conservative
circles this particular aspect of the issue can probably be considered most liberally).
Mutual masturbation and fellatio are not prohibited by the consideration of kuafn
rug hbpc, putting a stumbling block before the blind, or jhsnu ,hxn, incitement to
91. Iggrot Moshe, Yoreh De'ah 1:72.
92. Seridei Esh 3:61 & 62, Yechavveh Da'at 3:67, Minchat Shelomoh 189:1.
93. +o: nco
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Homosexual Relationships - A Halakhic Investigation
commit a sin.
In all these matters, perhaps, as in others, we might adopt the opinion of Abbaye that
/vkhj,fk r,un ivn ahu ruxt kct ruyp ivn ahu vkhexc ivn ah
some actions are capital offences, some are condoned and some are
perfectly legitimate."
94

94. Sanhedrin 67b.
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Homosexual Relationships - A Halakhic Investigation
Part 2
What practical conclusions can we draw from the halakhic conclusions offered in Part
1? It would be very easy indeed to create a halakhic case for blanket prohibition of
all homosexual activity. It would also be very cruel. Once Conservative rabbis are
convinced that homosexuals are not responsible for their orientation, cannot control it,
cannot ignore it and that it is not a pathological condition we should realise that we
have a duty to "pull up the halakhic floorboards" to find a heter. We have done this
in regard to
95
,ruhdu vaurdu ivf ; we have also done this in regard of the
96
vbudg ; we have
done this too in regard to ,rznnu rznn
97
; we have done this in regard to the halakhic
status and role of women in general
98
. We can do no less for the sincerely religious
gay person than we have done for the others. Not to do so would be an act of halakhic
cowardice.
The issues that are involved here are simple from the point of view of halakhic logic,
however difficult they may be for practical implementation. In his responsum of a
decade ago Rabbi Elliot N. Dorff made a plea for a moratorium on practical decisions
for several reasons, the most urgent being that not all our constituency were ready for
the changes required. Ten years have passed since then, a new secular century -
indeed, a new secular millenium - has dawned, and we can no longer accept the plea
that "the time is not yet ripe". The problem has not gone away and will not go away
just because we behave like ostriches and pretend that it is not there. The problem is
still with us, it is becoming more and more urgent, and we are failing in our halakhic
duty if we do not address the problem creatively.
99
In Part 1 we have, I hope,
demonstrated that provided mishkav zakhur is avoided there are ample grounds for
maintaining that gay people are living under a natural constraint that calls for their
relationships and sexual activities to be condoned by halakhah and its licenced
practitioners. Thus the contention that we cannot act to approve something that is
95. The union of a man of presumed priestly descent to a divorced woman or a proselyte.
96. A married woman the whereabouts of whose husband are unknown or who refuses to grant her a
divorce.
97. The offspring of unions not halakhically permitted.
98. Family seating, including women in the Minyan, reading from the Torah, serving as rabbis etc.
99. Because our movement accepted the idea of a moratorium in this matter we, as rabbis, have been
negligent in the task of education. An esteemed colleague has pointed out to me "the shortcoming of
all of our discussions (because we ourselves are uncomfortable owning up to it) is the matter of
visceral response by amkha. The word 'homophobia' is as offensive to liberal-minded straights as
epithets describing homosexuality are to gays. The phenomenon, however, is real. We cannot ignore
that socialization ... has produced a discomfort among straights at the notion of romantic and/or
intimate contact between two people of the same sex. I think it is important for straight people to 'get
over it' ... but the solution is neither to pretend it doesn't exist, nor to merely say, 'get over it.' ... These
folks make up a significant segment (even a majority) of our core constituency. To paraphrase Kaplan,
they shouldn't have a veto, but they should have a voice... Any comprehensive approach to righting
the wrongs of discrimination against gays and lesbians must address the very real prejudices/
orientations/ attitudes of a huge segment of the straight population. Especially, given the
predominance of sexual expression in our society - including public displays of affection at
synagogue, se'udot mitzvah and social occasions - there is a social element that must be taken
seriously. The tzedek and chessed involved must apply to our entire constituency, not just the
disenfranchised." I cannot agree more with these words and they must be taken into consideration
most carefully. Not only must congregants who have a 'problem' with gays celebrating in synagogues
try to accommodate, but also the celebrating gays must be considerate: in a synagogue a hug is a
perfectly acceptable means of expressing affection. Sat. verb. sap. - or as our own tradition says: hs
tzhnrc tnhfjk.
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Homosexual Relationships - A Halakhic Investigation
inherently forbidden by Torah is halakhically unacceptable! We cannot approve
mishkav zakhur, which is expressly forbidden by the Torah. If we now have a new
understanding of the nature of the psychology of homosexuality
100
it is not impossible
to adopt the heterim
101
that I indicated in part 1
102
.
Others have maintained that we cannot act to approve something that is "not natural
sex". When heterosexuals involve themselves with masturbation, mutual
masturbation, anti-pregnancy pills, condoms, spermicides, curettage and the most
amazing acrobatic feats in order to defeat conception, the heterosexual claim to
"natural sex" is sheer hypocrisy! Are we therefore to desist from performing
heterosexual marriages? From this point on we must be guided by propriety, decency,
understanding and compassion and not by specious arguments.
On March 25, 1992, the Committee on Jewish Law and Standards of the Rabbinical
Assembly adopted a statement of policy concerning gays which included the
following statement:
We will not perform commitment ceremonies for gays or lesbians.
I shall address this issue in the following paragraphs.
(1) Promiscuity.
In the world at large gay people are thought to be promiscuous. It is not our task here
to verify that assumption or to deny it,
103
but to address the question of promiscuity
from the religious point of view. It seems to me that the answer that Jewish religious
values require us to give to this question is clear: we can not and do not approve of
sexual promiscuity - not among heterosexuals and not among homosexuals.
Halakhic Judaism works in frameworks, so we must create frameworks for our gay
constituency that will work to reduce promiscuity. Not only is this dictated by our
vpeav hashkafah
104
, but also by halakhically pressing considerations of apb juehp
piku'a! nefesh
105
. The AIDS epidemic teaches us that we should do all that we can do
within traditional frameworks to limit promiscuity among all men and all women,
regardless of their sexual orientation.
106
100. That its etiology is not a voluntary conscious impetus, but a mindset over which the person has no
control, and that this mindset is natural and not pathological.
101. Permissive halakhic decisions.
102. It is perhaps worthy of note that I use the word "condone" rather than "permit". Halakhah knows
of a status between what is permitted and what is forbidden: an act which while usually being
forbidden in certain circumstances involves no penalty (see Rambam, Hilkhot Shabbat 1:3). By using
the word "condone" I am suggesting that while the acts discussed in this paper remain forbidden to
most people, when performed by homosexuals they are not seen as prohibited but as condoned because
of their special circumstances.
103. In a private poll conducted over the Internet in which more than 150 gay males voluntarily
participated, almost 25% of those sexually active reported that that were in a monogamous relationship
and less than 20% described themselves as completely promiscuous. However, more than 60% of
those who were not sexually active (approximately 40% of the participants in the poll) responded that
they were planning to be in an exclusively monogamous relationship. Although this poll was hardly
scientific, as regards other questions that were asked for which there are independent reliable statistics
the responses proved to be quite reliable.
104. General religious philosophy.
105. Saving a human life that is in immediate danger.
106. Even those who are unconvinced concerning halakhic propriety will surely appreciate that in a
heterosexual context a woman committing adultery five times with the same man is preferable to the
same woman committing adultery once each with five different men! On the same rationale, it is better
for a gay person to have sex many times with the same partner rather than only once with many
partners.
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Homosexual Relationships - A Halakhic Investigation
(2) Commitment Ceremonies.
In another responsum that was accepted by the CJLS
107
, Rabbi Reuven Kimelman
proposes that approving same-sex marriages could undermine the institution of the
family which is at the very heart of normative Jewish society.
Ascertaining whether valorizing homosexuality is at all detrimental to
family-producing sexuality is at the heart of public policy analysis. If
it is, then the approval of a priori non-procreative marriages as a class
could tend to devalue the type of sexuality that leads to procreation.
The religious community has a vested interest in getting people to deal
with their sexuality in a manner that is supportive of family and
children. Indeed, the strength of the community is dependent upon
persuading its members to define their self-interest in terms of
responsibility for others, starting with spouse and children... In sum,
religious legitimation of extra-normative sexual relationships threatens
to undermine the privileged position of normative marriage.
With benefit of more than a decade of hindsight we can confidently state that Rabbi
Kimelman's fears have not been borne out, thank God. It is true that in modern times
the family as an institution is under siege. The rates of intermarriage and divorce are
so high in the USA that one wonders how the traditional Jewish family can survive
there for another hundred years. But this fragility of the Jewish family has nothing to
do with permitting or prohibiting same-sex unions. On the contrary, more and more
gay couples are demanding the right to adopt children or to produce their own
offspring by artificial insemination. It is, therefore, paradoxical that while the
heterosexual family is falling apart before our very eyes, many homosexual unions are
demanding the right to create families modelled on the traditional family! There are
now many instances of the legitimization of homosexual families in various countries
around the world
108
. There is no evidence that children brought up in such a family
become homosexual themselves. Certainly, as we have already noted, Rabbi
Kimelman's fear that the legitimization of the homosexual family would deal a death
blow to the embattled heterosexual family has been shown to be unjustified. On the
other hand, the very fragility of the institution of the heterosexual family in our times
requires us to make it very clear that the homosexual family is not the Jewish ideal
and that it is a format that could be countenanced only for those gay people who are
constitutionally incapable of creating and maintaining a family heterosexually.
109
107. Adopted by the CJLS on March 25th 1992.
108. It is perhaps relevant to note here the decision of a court in Beer-Sheva, Israel, in February 2003
to permit a lesbian couple to adopt the child of one of the partners (conceived through artificial
insemination.) Also, on July 30th 2003 the Tel-Aviv Municipality voted into effect regulations that
accord same-sex couples the same benefits as heterosexually married couples. The newspaper Ha'aretz
reported the following day: "The decision, which was called by sources at city hall Wednesday 'the
beginning of a civic revolution,' awards the same discounts at municipal cultural, sports, and other
facilities to same sex marriages as are currently available to ordinary marriages. In order to be eligible
for the discounts, a couple must present an affidavit from a lawyer in which they declare that they
share a common domicile. They may also declare that they are raising a child together."
109.In response to a query from a colleague I wrote: I am not certain to what extent one could make an
halakhic case out for the permissibility of homosexual activity for the man who is able to achieve
satisfaction from heterosexual sex. As I see it, Judaism does require such a man to perform the mitzvah
of 'pru u-rvu'. However, one should consider what should be the halakhic status of a person (male or
female) who is locked in a heterosexual marriage but who now finds that their sexual orientation is
uniquely homosexual. If my interpretation of the 'quiz' (page 8 above) that Bar-Kappara puts to Rabbi
is acceptable then the Conservative rabbinate should adopt the following guidelines:
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Homosexual Relationships - A Halakhic Investigation
It follows from what we have already said that it is to the benefit of all concerned that
we create a framework that will give ritual effect to the creation of same-sex couples
and that this framework would not delegitimize the traditional heterosexual family.
There are three main benefits: a reduction in the danger of AIDS and other
life-threatening sexually transmitted diseases, a decrease in the incidence of
promiscuity, and the ritualization of the relationship within an halakhic framework.
110
In this regard there are two issues that must be scrupulously avoided. Firstly, under no
circumstances can the creation of this bond of affection be considered to be ihaushe
kiddushin. Kiddushin is the ritual act by which a man acquires tutelary rights as a
husband over a woman who consents to be his wife. No man can acquire such rights
over another free man, nor can any woman acquire such rights over any other free
woman
111
Secondly, the financial rights of the woman within the marriage bond are
secured by the vcu,f Ketubbah, the marriage deed. This is a document in which
witnesses testify to the fact that the husband has made financial provisions for his
wife, provisions which, in theory, are to be actualized in the event of divorce or his
dying before she does.
Kiddushin between two free males or two free females is technically impossible. The
act of Kiddushin requires the man to give the woman an object of a certain minimal
value and to warn her that by accepting this object she becomes his exclusive partner,
hk ,asuen "mekudeshet li"
112
. (She cannot make a similar statement to him since,
according to Torah law, he need not be her exclusive partner.) For this reason, in a
commitment ceremony, any such phrase as hk asuen v,t "Attah mekudash li" or
hk ,asuen ,t "At mekudeshet li" must be avoided as being a halakhic impossibility.
As for the Ketubbah, it is well known that the Amora Ulla praises non-Jews for
having refrained from three crass sins, one of which is that they did not write a
Ketubbah for two men
113
.
Nevertheless, it should not be too difficult to find aesthetic alternatives to these items
which would be halakhically acceptable. In an addendum to this paper I provide a
suggested ceremony, and I have added a few explanatory notes to that text. And it is
entirely appropriate that such an effort be made. It is not only the practical issue of
discouraging promiscuity because of STD's. Gays and lesbians feel the need for
establishing a permanent loving relationship no less than straights. The paternal and
maternal instinct is no less strong in gays and lesbians than it is in their heterosexual
counterparts. Religious gays and lesbians want to celebrate and commemorate their
1. Rabbis who know that one of the members of a prospective couple is gay or bi should require them
to declare this to the other and to explain the dangers to the future of the relationship.
2. If one of the spouses discovers his or her exclusive homosexual orientation during the existence of
the marriage, Conservative rabbis should recognize this as sufficient reason for a divorce and even
'hafka'at kiddushin'.
110.By "ritualization of the relationship" I mean a ceremony in which two gay people pledge that they
will remain exclusively faithful each to the other and that they regard their union as a sacred bond of
love and affection and this pledge is ratified, as it were, by the publicity afforded by the ceremony.
111. All concepts of 'the sacred bond of marriage', of romantic love, of marital fidelity, of the equality
of the parties and so forth in connection with the institution of Kiddushin are later, modern, accretions
that have no halakhic standing whatsoever. They do have a place within the concept of Nissu'in.
112. This sexual exclusivity is emphasised by the terms used by the man when ending his tutelary
rights over his wife by the instrument of divorce: ost kfk ,r,un ,t hrv "You are now permitted to
any man".
113. Chullin 92a-b.
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Homosexual Relationships - A Halakhic Investigation
life-cycle joys and sorrows within the framework of the religious kehillah just as
straight people do. We should make the effort to find appropriate halakhic and
communal avenues to facilitate these needs. And we must bear in mind that the duty
that devolves upon us is not only that of finding a halakhic 'modus vivendi', but we
must also educate our congregants into a new understanding, help them to open their
hearts, respond to their fears.
One objection that could be raised to the suggested arrangement for a commitment
ceremony could be that the legitimacy of the bond is based in the halakhic
presumption that the male couple will never engage in mishkav zakhur. Since -
according to the objection - such an avoidance cannot reasonably be presumed, the
ceremony should be invalid ab initio, since everyone agrees that mishkav zakhur is
one of the arayot and those that contravene this law are ,rf hchhj !ayyavei karet,
doomed to excision. This objection is a red herring. There is, in fact, no halakhic
difference between the sin of mishkav zakhur and the sin of vshb ,khgc be'ilat niddah,
copulating with a woman who has not bathed in a ritual bath after her last
menstruation
114
: both are !ayyavei karet. It is commonplace that the overwhelming
majority of Conservative married women do not visit the v u e n mikveh
115
regularly (or
at all!). Based on statistical probabilities, in the case of every marriage the
presumption should be that the woman has not visited and will not visit the mikveh.
Yet this fact does not deter even one Conservative rabbi from performing vpuj
ihausheu !uppah-kiddushin for any such couple. We do not pry into what happens in
the couple's bedroom after their marriage; the same should apply to a gay couple.
Furthermore, the bride and groom make no undertaking that they will observe the
laws of vjpanv ,rvy taharat ha-mishpa!ah, family purity, whereas in the suggested
declaration that I have included in the addendum the religiously motivated male gay
couple do undertake to do their best to refrain from mishkav zakhur. Furthermore,
obviously this objection is completely irrelevant as regards commitment ceremonies
between two lesbians.
(3) Congregational religious observance.
On March 25, 1992, the Committee on Jewish Law and Standards of the Rabbinical
Assembly adopted a statement of policy concerning gays which included the
following statement:
The rabbi of each Conservative institution, in consultation with its lay
leaders, will be entrusted to formulate policies regarding the eligibility
of homosexuals for honors within worship and for lay leadership
positions.
I shall address this issue in the following paragraphs.
The objection is often raised that "out-of-the-closet" gays are not acceptable role
models. I do not wish, at this juncture, to discuss this objection; I shall do so later on.
At this point I want to relate to a corollary of that objection, which claims that since
gays are not acceptable role models they should not serve in communal ritual
functions, such as leading services, reading from the Torah etc.
114. Yerushalmi, Sotah 5:1. Shul!an Arukh, Yoreh De'ah 183:2. (See also Rambam, Issurei Bi'ah
4:11.)
115. Ritualarium, ritual bath.
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Homosexual Relationships - A Halakhic Investigation
Rabbi Reuven Bulka is a renowned Orthodox rabbi and posek [decisor] and also a
licensed clinical psychiatrist. I quote here part of a published reply that he gave to a
gay man who asked him about such matters
116
. Here and there I have marginally
changed the original wording for the sake of clarity. The original questions are in
italics and the rabbi's response in ordinary typeface.
1. May I lead services if I am asked? Is this permissible for someone
like me, who is committed to trying to live a life of Torah and mitzvot,
but who is a sexually active homosexual (who nevertheless avoids the
prohibition of mishkav zakhur [anal penetrative sex]) and is "out of the
closet"?
Absolutely yes. There is no such thing as someone who is a
homosexual. Tendencies are not relevant. Behaviour is relevant. If you
do not engage in mishkav zakhur [anal penetrative sex] you are a ehsm
tzaddik [righteous], and worthy of ,uhkg aliyyot to the Torah and of
being a ruchm jhka sheli'a! tzibbur [prayer leader] etc.
2. Should I accept aliyyot to the Torah if I am offered? At one
synagogue I attend I am called up to the Torah, even though the
congregation knows that I am gay; but at another, they will not call me
up. Who is correct?
The ones who call you to the Torah. The others are wrong.
3. Would it be forbidden for me to teach Torah? I have devoted much
of my time to teaching Torah, and regard doing this as a replacement
for my never being able to have children. My concern now is that,
since I am an out gay man, if I were to teach Torah publicly, perhaps
people would think it is OK to be gay?
No. Nothing wrong at all...
4. Would there be a halachic problem with being involved in a support
group for religious homosexuals, with the express intent to keep these
people as observant Jews?
No [there would be no halakhic problem].
On what grounds could this be considered as ,hxn mesit
117
?
None.
Surely, on the contrary, it is curhe keruv
118
and ,uapb ,kmv hazalat
nefashot
119
?
Yes.
I do not think that there is any need to add even one word to Rabbi Bulka's responses.
There is no halakhic justification for denying gays any of these honours. I would be
amazed if there is even one Conservative synagogue in which such honours are
116. Rabbi Reuven Bulka, May 2000. Rabbi Bulka is the Rav of the Orthodox Ma!zikei ha-dass
Synagogue in Ottawa, Canada.
117. "Aiding and abetting" people to sin.
118. Keeping people within the fold of Judaism.
119. Saving human lives, or saving people for Jewish practice.
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Homosexual Relationships - A Halakhic Investigation
denied people who publicly desecrate ,ca Shabbat or who do not observe the laws of
family purity. Halakhically, the non-observance of these mitzvot is no less serious
than non-observance of mishkav zakhur. To permit these honours to all others and
still to deny them to gays simply because they are gay is spurious reasoning and
would be the height of halakhic hypocrisy. Surely, no Conservative/Masorti
congregation should deny gays any communal honours that are open to all others.
Again, I emphasise the need for education and guidance; and gay people should also
be required to understand that some congregations cannot go as fast as they would
want them to and they (the gays) should perhaps seek their legitimate needs in a more
amenable congregation. The same would apply to rabbis: it is unthinkable that gays
should expect every rabbi, regardless of his or her halakhic understanding, to perform
for them everything that they want.
(4) Religious leadership roles.
On March 25, 1992, the Committee on Jewish Law and Standards of the Rabbinical
Assembly adopted a statement of policy concerning gays which included the
following statement:
We will not knowingly admit avowed homosexuals to our rabbinical or
cantorial schools or to the Rabbinical Assembly or the Cantors'
Assembly.
I shall address this issue in the following paragraphs.
Even though a gay man is exempt from the duty to marry and procreate
120
, this does
not mean that they cannot "produce" offspring in another sense. Several modern
rabbis have suggested that in place of the duty of procreation, religious gays should
take upon themselves the task of educating others (both children and adults) in Torah.
In a beautiful letter
121
to a religious gay person Rabbi Aharon Feldman
122
writes
123
:
I believe that the course you have taken is correct: you must refuse to
deny your nature as a homosexual while at the same time refusing to
deny your Jewishness. There is no contradiction between the two if
they are viewed in their proper perspective... Whatever the source of
this nature, be it genetic or acquired (and the Torah does not express
any view on the matter), is immaterial. This nature in no way
diminishes or affects the Jewishness of a homosexual. He is as beloved
in God's eyes as any other Jew, and is as responsible as any Jew for all
the mitzvot... He will merit the same share in the world to come which
every Jew merits...
Family and children are important in Jewish society but one who does
not have these need not feel that he is not a fully-fledged member of
the community. The verse in Isaiah 56:3-6, which is read by Jews all
over the world on every public fast-day, is addressed to the
homosexual: Let not the saris (who is physically unable to have
children) say 'I am a dried up tree.' For so saith G-d to the sarisim who
keep my Sabbath, who choose what I desire, and who keep my
120. A woman is exempt whether she is gay or not.
121. This letter, with a slight change, appeared in the spring issue of Jewish Action Magazine, 1998.
122. Rabbi Aharon Feldman is currently the dean of Ner Israel Rabbinical College in Baltimore, USA.
123. I have minimally edited this quotation for the sake of clarity.
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covenant: I shall make them in My house and within My walls a
monument, a shrine, superior to sons and daughters. I shall render
their (lit., his) name everlasting, one which will never be forgotten...
Because he does not have a family, a homosexual can make serious
contributions to Judaism which others cannot. For example, bringing
Judaism to smaller communities where there are no facilities for raising
a Jewish family.
Activities involving much travel, such as fundraising, a vital aspect of
Jewish survival, is best accomplished by someone who is not tied down
to a family. I know of a homosexual who helped establish several
important institutions through his fundraising and is grateful for the
sexual orientation which freed him to make this contribution.
It is no accident that homosexuals are generally more sensitive to the
needs of others and to matters of the spirit (viz., the high percentage in
the arts) than the rest of the population. This is because their function
in society is meant to be one where their family is the Jewish people.
Their sensitivity is an emotional tool which they were granted for
devoting themselves to, and empathizing with, others
124
...
It is clear that in this letter Rabbi Feldman, an ultra-orthodox Jew, shows a far greater
sensitivity to the potential for Torah that the gay person can offer the community than
the comparatively unfeeling refusal of the CJLS to consider gays for rabbinical or
cantorial school.
In his last paragraph Rabbi Feldman notes something that is very important and very
significant. The sexual tension generated by a homosexual orientation often serves to
heighten creative output in many different spheres of human endeavour. This has
been demonstrated again and again in innumerable famous instances. I include just a
brief sample:
Alexander of Macedon, Richard I, Edward II, James I of Britain, Peter the Great of
Russia (monarchs), Popes Benedict IX, Julius III, Rabbi Steven Greenberg (clerics),
Michelangelo Buonarotti, Leonardo da Vinci, David Hockney (plastic arts), Gerard
Manley Hopkins, Walt Whitman, W.H. Auden, Alan Ginsburg (poetry), Christopher
Marlowe, Oscar Wilde, Terrence Rattigan, Tennesee Williams, Edward Albee
(playwrights), Piotr Tchaikovsky, Gian-Carlo Menotti, Benjamin Britten, Leonard
Bernstein, Cole Porter (composers), Hans Christian Andersen, Herman Melville, J.M.
Barrie, Mary Renault, Gore Vidal, Truman Capote (novelists), Sarah Bernhardt, Errol
Flynn, Joan Crawford, John Guilgud, Rock Hudson, Dirk Bogarde, Marlon Brando,
Ian McKellan, Rupert Everett, Ellen DeGeneris (actors), Marlene Dietrich, Joan Baez,
Johnny Mathis, David Bowie, Freddie Mercury, Elton John (popular singers), Billie
Jean King, Martina Navratilova, Greg Louganis (sport), Alan Turing (computer
science, mathematics, philosophy, codebreaking)...
and this, of course, is just a handful of famous names - a long and impressive list.
Imagine how much poorer our world would be without the contribution of some of
these. The Conservative Movement should not deny itself the talents of those gays
who sincerely wish to serve the Jewish community as rabbis, cantors and teachers.
More to the point, the Conservative Movement has no halakhic or ethical right to
124. I do not agree with everything that Rabbi Feldman writes here, but I greatly empathise with the
warmth and humanity of his general thesis.
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Homosexual Relationships - A Halakhic Investigation
deny decent, respectable gays the opportunity to serve our constituency as rabbis,
cantors and teachers.
On what grounds (other than a prejudice which is no longer appropriate) can such
discrimination be exercised? Perhaps the rationale is that "sinners" cannot serve as
rabbis. This is an admirable policy - but should it not be uniformly enforced by us?
The Rabbinical Assembly has members who publicly declare that they use their
automobiles on Shabbat and cuy ouh Yom Tov for purposes other than synagogue
attendance. The Rabbinical Assembly surely must have male members whose wives
do not regularly visit the mikveh. For all I know there may well be female married
rabbis who do not do so either. The Rabbinical Assembly has members who openly
admit that sometimes they eat non-meat products etc in non-kosher restaurants...
None of these rabbis were denied entry into rabbinical school nor is their continued
membership of the Rabbinical Assembly challenged by anyone (and certainly not by
me). How are we to explain that the only "sinners" who are discriminated against are
gays? But beyond all this: even the most severe of the respondents of the CJLS of a
decade ago, Rabbi Joel Roth, conceded that it is no sin to be homosexual. So the only
"sin" that the CJLS policy statement can refer to is the assumed incidence of mishkav
zakhur. Whatever happened to presumed innocence? Whatever happened to "Every
person is presumed to be kasher
125
,
126
? Whatever happened to "Every Jew is
presumed to be kasher"
127
? Is it appropriate that we automatically assume that every
gay male is guilty of mishkav zakhur?
128
,
129
Perhaps it was thought that an "out-of-the-closet" gay person is a bad role model?
Why? Because he or she does not create a family? Do we accept into our rabbinical
schools only married people? Do we require our rabbinical and cantorial students to
affirm that they will marry and procreate? Do we oust from office all rabbis and
cantors who are not married? Perhaps we are to be wary that a gay rabbi might seduce
straight people into homosexuality. Leaving aside the question whether this is
psychologically possible, I cannot understand why this issue should be of greater
concern than the possibility of sexual misconduct by heterosexual rabbis, cantors and
teachers. The Rabbinical Assembly has created organizational mechanisms to deal
with such issues: those mechanisms would be just as effective as regards gay
misconduct as straight misconduct. But, moreover, if, despite all the prejudice against
gays that undoubtedly exists in our congregations, a person declares that they are gay
and that they want to be a rabbi (or a cantor, or a teacher), then they will be all that
much more careful to observe all the requirements of religious propriety scrupulously.
That a gay religious leader will behave with impropriety is less likely than that a
heterosexual religious leader will do so.
Perhaps it could be argued that no congregation would accept an "out-of-the-closet"
rabbi as its spiritual leader. That is a moot point: the proof of the pudding will be in
125. Unless they are proven to be otherwise.
126. Tur, Yoreh De'ah 119.
127. Mishnah Berurah, 136:9.
128. Even if our rabbinical schools insist on making that assumption that should not prevent them from
accepting female homosexuals into rabbinical and cantorial schools; as ridiculous as it sounds they
could even require male gay applicants to sign an undertaking to refrain from Mishkav Zakhur!
129. In a previous note I quoted the following statement: Some people presume that sex between men
will involve anal penetration. In fact, in relation to penetrative sex it has been found that between a
quarter and a third of homosexual men have never had anal sex, either as the penetrative or receptive
partner..."
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Homosexual Relationships - A Halakhic Investigation
the eating. Similar dire prophecies were made several decades ago concerning
women serving as rabbis: time has proven those prophets to be false prophets. Does
anyone seriously doubt that in this 21st secular century that there will be Conservative
congregations that will accept a gay rabbi as their mara de-atra? But even if there is
not even one, that is no excuse for denying gays the right to study Torah in our
rabbinical and cantorial schools and our teacher-training institutes. If we do not
concede the right of gays to learn in our Torah institutions we are admitting that those
institutions are mere 'rabbi factories'.
Perhaps it could be argued that "legitimizing" homosexuals would have the same
result as the legitimizing fifty years ago of the use of the automobile on Shabbat and
Yom Tov. It is no secret that I question the halakhic wisdom of permitting the use of
the automobile, and it will be readily acknowledged that permitting the use of the
automobile for travel to synagogue has become for the majority of Conservative Jews
the equivalent of permitting its use for all purposes. However, the "legitimizing" of
religious gays is a different matter. It only affects gays and there is no way that they
could legitimately take advantage of it and extend is application. The "legitimizing"
of the homosexual is better compared to the "legitimizing" of the woman in Jewish
practice: once done it cannot be extended because it is whole in itself.
SUMMARY of Part 2
It seems reasonable to draw the following conclusions from the discussion in Part 2.
There is no halakhic or ethical justification for excluding gays from congregational
rights and honours, including leading the services, reading from the Torah, teaching
and preaching and so forth. Therefore it would now be appropriate for our halakhic
authorities to instruct rabbis and congregations to avoid discrimination against gays
as such in these matters.
The celebration of commitment ceremonies would not be forbidden if there is no
incidence of kiddushin or ihaushe iuak the language of kiddushin, and provided that
there is no document which resembles the ketubbah in its content, format, purpose
and signature. The celebration of commitment ceremonies may well be a positive
contribution in that it would reduce promiscuity and reduce the danger of mortal
disease. Therefore it would now be appropriate for our halakhic authorities to permit
rabbis who are prepared to officiate at commitment ceremonies so to do, but we
should postulate that those commitments be endogamous and monogamous.
To deny gays and lesbians the right to study Torah in our rabbinical schools is folly in
that they have as much to contribute to the enhancement of Torah as anyone else and
they may even serve as mara de-atra or marta de-atra in a congregation that will
accept them. Therefore it would now be appropriate for our halakhic authorities to
consent to the admittance of all seriously and appropriately motivated gay people into
our rabbinical schools, cantorial schools and teacher-training institutes.
CONCLUSION.
The Gemara
130
records that once Rabbi Meir ate a vegetable grown in ita ,hc Bet
Shean during a vyhna shemittah year and that Rabbi Yehudah ha-Nasi used that
precedent in order to declare that Bet She'an was permanently released from the
130. Chullin 6b-7a.
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Homosexual Relationships - A Halakhic Investigation
strictures of shemittah
131
. The opposition to this move was very vocal: "How can you
permit something that was expressly prohibited by all your predecessors?" Rabbi
responded first by bringing an analogy. During the desert wandering Moses had
created a bronze serpent which was given the name i,aujb "Ne!ushtan"
132
. This
bronze serpent had been preserved, but by the time of King Hezekiah it had become
an object of idolatrous veneration. King Hezekiah did not hesitate to destroy this
artifact made by Moses.
133
Rabbi asked his critics how they would explain that
righteous kings who preceded Hezekiah, such as Asa and Jehoshaphat, did not destroy
this artifact, even though they were zealous in removing other forms of idolatry - and
yet Hezekiah did so. "His predecessors left him room to make a name for himself. In
the same way my predecessors have left me room to make a name for myself." On
this incident Rashi
134
comments: "If our successors do not find something to put right
how will they make a name for themselves?" Is it too fanciful to suggest that the
predecessors of our generation have "left us room to make a name for ourselves"? Is
it too fanciful to suggest that our generation must make a name for itself by "putting
right" the status of religiously observant gays? Surely, the time has come.
In his responsum of a decade ago Rabbi Elliot N. Dorff wrote:
Taken together, these data are sufficient for me to affirm confidently
that we should no longer see homosexuality as a moral abomination.
The tradition, in saying that it was, clearly assumed that sexual
attraction to, and sexual intercourse with, people of the same gender
were totally voluntary. We certainly know enough by now to assert
that that is a factual error.
Rabbi Shmuley Boteach has written
135
:
Religious people should finally get over their all-too-apparent
homophobia and reverse the discriminatory policy which says that
homosexuality is an aberration marked by God for special censure.
Like heterosexual men and women, gays are God's children, capable of
bringing light and love to a planet whose darkness is caused not only
by sin but also misguided judgmentalism.
Amen.
Herzliyya, Israel
12th Sivan 5763
June 12th 2003
ravsim@zahav.net.il
131. This, even though it was obviously well within the borders of Eretz-Israel.
132. For the full story see Numbers 21:6-9.
133. 2 Kings 18:4.
134. ad loc.
135. In an article entitled "Dr. Laura Misguided On Homosexuality", June 2, 2000 / 28 Iyyar 5760.
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Addendum 1:
Mishkav Zakhur prohibits anal pentration.
One colleague whose opinion I value very much challenged my assumption that what
the Torah is prohibiting is anal penetration. He argued that perhaps it is penetration
of the mouth that is meant. While it seems to me obvious that our halakhic tradition
has always understood the penetration to be anal I take up the challenge to
substantiate my claim that our sages throughout the ages have understood those two
biblical verses as prohibiting anal penetration of one male by another. This is not as
simple as it seems since the sages almost invariably use euphemisms whose meaning
they assume everyone understands.
In many places
136
the Talmud points out that in these verses the essential Hebrew
word for copulation is in the plural; the Hebrew term vat hcfan mishkevei ishah
(literally "copulations with a woman") is explained as indicating that there are two
ways that heterosexual copulation may take place. These two ways are called by the
sages vfrsf tkau vfrsf. We can translate this phrase as "normally or not normally".
Obviously, "normal" heterosexual sex refers to penetration per vaginam. Is it
justified to assume that what the sages mean by "not normal sex" is penetration of the
woman per anum, as is generally assumed?
137
Jeremiah 3:13 is part of an extended metaphor which sees Israel as a wife who has
given herself up to promiscuity. The verse reads as follows:
hkuecu ibgr .gkf ,j, ohrzk lhfrs,t hrzp,u ,gap lhvkt wvc hf lbug hgs lt
:wvotb o,gnatk
Only acknowledge your iniquity, that you have transgressed against the
Lord your God, and have scattered your ways to the strangers under
every green tree, and you have not obeyed my voice, says the Lord.
Rashi explains the enigmatic phrase "scattered your ways" as "promiscuity; opening
wide your legs as in vat hcfan" - "copulations with a woman". Here, Rashi's
graphic description of the phrase mishkevei ishah rules out any possibility of the
phrase indicating penetration of the mouth! That leaves only two other possible
orifices. Is it justified to assume that the phrase means penetration per anum?
In tractate Nedarim 20a the Gemara describes calamities that could befall married
couples who engage in sexual obscenities. Most of the phrases are, of course,
euphemistic. One of them describes a married couple as "turning the tables". Rashi
explains this euphemism as meaning "face to back: they mount their wives not
normally". While it is reasonable to assume that what is indicated here is that "not
normal sex" indicates anal penetration (and almost certainly does not refer to
penetration of the mouth!) we must allow for the remote possibility that it means to
indicate vaginal penetration from the rear.
Several of the ohbuatr Rishonim
138
state that a husband should not copulate with his
136. For example, Kiddushin 22b and very many other passages. See also Sifra Kedoshim 10:9.
137. For example, in his explanations on Nedarim 20a Rabbi Adin Steinsaltz automatically assumes
that the term vfrsf tka which we have understood to be "not normal sex" refers to anal penetration of
the wife by the husband.
138. See Tosafot on Yevamot 34a s.v. lu,n; Rambam Issurei Bi'ah 21:9; Tur (and Rema) in Even
ha-Ezer 25:2.
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wife "not normally" since he would not thus deposit his seed "in the right place".
This proves that the term mishkevei ishah must indicate anal and not vaginal
penetration.
However, I think that I can conclusively substantiate the claim that mishkav zakhur
was understood by our classical authorities by reference to a responsum of
Maharshadam
139
. This responsum was concerned with a case that came before a Bet
Din concerning a shochet yjua (ritual slaughterer) whose morals were being
impugned. Maharshadam reports part of the evidence as follows:
rdu,u tuv sjt rpfc lkuv vhv rcga .hev vzc lht shgvu ohxb rc sus tc sug
,urhp ovk rufnk xsrpv ,kgck turek hsf xsrpv rsdn onmg uyvu ung sjt
o,ut utrafu rufz cfanc ung gcrb vhva rjt rujc og vz ueaunk oa utru
///ohruae h,kc ohxbfnv og ujrcu uvgr kgn aht usrp,bu ujrc
Then David ben-Nissim came and testified [before the Bet Din] how
that same summer he and a Turk had been walking in a certain village.
They leaned over the orchard's fence in order to call to the woman who
owned the orchard to sell them some fruit. There they saw this
Moshico with another lad who was comitting sodomy with him as
mishkav zakhur. When they saw them they ran away in separate
directions with their trousers unhitched...
The Hebrew term here used by Maharshadam, gcrb, can only indicate anal penetration
and it is specifically associated by him with mishkav zakhur.
Having established this fact we can return to our interrupted discussion.
139. Responsa of Rabbi Shemu'el di Modena [1506-1590], Even ha-Ezer #3.
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Addendum 2:
Advice to those who fail in their attempt to refrain from Mishkav Zakhur.
Before we leave the subject of mishkav zakhur I would like to address a very human
element into the discussion. It is very simple to make the bald statement that mishkav
zakhur is forbidden - and certainly there are many gay men who refrain from anal
penetration, most I would guess for reasons which are not religious
140
. Also, bearing
in mind that this paper is directed towards the religious Jew, it is reasonable to assume
the he would want to subordinate his desires as much as he can to the dictates of
Torah. However, for very many gay men the prohibition of mishkav zakhur is almost
the equivalent of a prohibition of vaginal penetration in heterosexual sex. This
demand that the Torah makes of them is very difficult indeed for them. On the one
hand it is true that the Torah also imposes certain prohibitions on heterosexual
copulations, the most obvious being the prohibition of sexual intercourse with a
woman who is niddah. But the couple who scrupulously observe the restrictions of
niddah know that full sexual relations will be resumed after the passage of eleven or
so days. The prohibition of mishkav zakhur is, however, a blanket prohibition.
Therefore I think that we must accept that however earnestly two religiously
motivated gay men may try to observe the prohibition of mishkav zakhur there is a
great possibility that sometimes they will not be able to withstand their rmh, their
natural impulse. What should these men do in such circumstances?
This is a very hard question to answer for a rabbi who is committed to a halakhic
thesis as expounded so far in this paper. Nevertheless, for reasons of intellectual
honesty, halakhic integrity and sheer human kindness it is a question he or she may
not avoid. I base my advice on a biblical verse:
141
/lh,jrt rahh tuvu uvgs lhfrs kfc
In all your ways acknowledge Him, and He will direct your paths.
This verse is quoted in the Talmud
142
with a very interesting comment.
uvgs lhfrs kfc" - ?vc ihuk, vru, hpud kfa vbye varp hvuzht :trpe rc ars
/vrhcg rcsk ukhpt :tcr rnt /"lh,ujrt rahh tuvu
Bar-Kappara stated the following midrash: which is a small verse upon
which hang all the basics of Torah? It is "in all your ways
acknowledge Him, and He will direct your paths". Rava said: even
when you sin.
What is Rava adding to the plain meaning of the verse which Bar-Kappara says is an
essential part of Torah observance, something on which all the major issues of the
Torah depend? He is saying that if, even when you sin, your thoughts and intentions
are directed to love of God, He (God) will consider your action as worthy. In the
Torah
143
we learn how the two nations of Moab and Amon were generated by two acts
of incest. Yet Rabbi Ovadyah Sforno, in his commentary on that verse, applies the
thought that we have just enunciated here:
,mec ovrct haruh ohud hbak ogrz vhv vhumr ohabv ,buuf v,hva hbpn hf
/vrhcg rcsk ukhpt uvgs lhfrs kfc orntf
140. See note 25 above.
141. Proverbs 3:6.
142. Berakhot 63a.
143. Genesis 19:38
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Because the intention of these women was worthy their descendents
became two peoples tracing their descent from Abraham, as is implied
in the rabbinical teaching, "in all your ways acknowledge Him" - even
when you sin.
So, my advice would be that if occasional weakness results in mishkav zakhur, thank
God for the deep love that prompted the act and for the deep emotional sense of
togetherness and the ecstatic union of souls that in its turn the act generated. Go out of
your way to relate to others with a shadow of that outpouring of love that you have
been privileged to experience. Go and give vesm charity to the needy or to a worthy
cause as an expression of a deep gratitude to Heaven and a desire that others share a
modicum of the happiness you have been vouchsafed. Be loving, kind and
considerate to each other, and then try to emulate the ecstatic joy of the physical love
you have experienced in your spiritual relationship with God - "and He will direct
your paths".
144
144. Also bear in mind sincere repentance and Yom Kippur.
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Homosexual Relationships - A Halakhic Investigation
Addendum 3:
A suggested order of service for a commitment ceremony.
145
o +:, n : a : + c
a : v + : : : : a : : c : :s a o o a : ~n s : + a v : : s ~: a :_ : :v : +:n : :: o : o
: n a : n: x_ +:n a : : v o :s a :: n v : _ o s x : : o_ v :: _ :_ s : : : :: o v s: c :_ s s: :
:: n ::o_ s : + : : +~+_ v : : + c_ c ::v : : a: o~ a :: o o : a_ : a : : :+:
::o:s a:
:s
c , +" s :: e ~c s a :c : o_ v_ a a: " o : a o c :~o : o_ s + s ~ o c "_ : o_ c a:o
s +" s :: c : c_ : c "_ : o : a a o ~c s c_ x :: o ,_ _ : " : o s : :: e o + s : : s : : : a_ ~n s
:: + x : : + o_ v_ c "_ : o_ + s :c , n ~c s : :c
:n/:o:s s .+ s ,:: :_ s ,: s : o v_ o o
:::: :,: .+ s ,:: :_ s ,: s : o v_ o o
:n/:o:s a .+ v : c ::v : : o , : o , : o
:::: :,: .+ v : c ::v : : o , : o , : o
:n/:o:s s .s : v o: s : s :::: :,: .s : v o: s : s
:n/:o:s a .s : v o: s : s :::: :,: .s : v o: s : s
:n/:o:s s .s : : x_ s : s :::: :,: .s : : x_ s : s
:n/:o:s a .s : : x_ s : s :::: :,: .s : : x_ s : s
: c:a :v :ao a: a :s:
: o_ s , n:: a/ : a n_ : c n n s s :-: a_ , . c x _ : e s ::a ,c ::v : o :: :_ s , n_ s :: a
n s o/c n s o + c_ . o v/c o v n o v : o_ s n o_ s : + c _ : a :_ v +:n : c a _ v a_ : :s a
c:: o a :_ _ s a: a_ _ s a +_ _ : a o n o/:a o o a_ :/c a_ : .o:o n :_ s o:: o n : a: ,o:o :_ s
, n_ s :: a . n:: x o c _ , :: n ::n a n:x_ _ : : , a , a + :: n:s s : :: a_ _ s : ,n:v : a:
.a o o_ : a:o_
:c:o:s: :: : :no c:n:: x:: :a
:c : _ o:o_ a " v: : : :_ s_ : : +:+ :c : _ o:o_ a " v: : +:+ : +:+ : :_ s
c o : s : , :: " s o a o , a_ _ s n : o_ a :_ v~ a v:: :~:_ v c n:_ a a :~:_ v c n:_ a : o o
145. I can see no objection to the ceremony taking place under a chuppah. The chuppah represents the
shared home that the couple are creating, and seems eminently suitable.
146. I have included a reading from Kohelet 4:9-12 because it seems to me to be an appropriate
message: the coming together of two people for mutual support. Two united can more easily "suffer
the slings and arrows of outrageous fortune".
36
Dear David
Homosexual Relationships - A Halakhic Investigation
: : c o o s : n: " : :: a_ _ s ~n s n: a_ a : :: a: s : c a _ : c _ o : n a : _ o o" s e o :
:o+:, n:a cac ns cs:,o:
::
[ :::c c:: ::s [ ,naoa a: a [ o+:a co :::c coo: n:so vao: cc:s noo n:o ,
[ oa: a sa c::o ::so :o: :::c [ s:o :n :s:o n:+oa oa: oa [ o+:a co :::c
[ cc:s n:oa oa: (c::v n:o:s :o:
[ ,::s c:o:s ::o:s a :::c [: +s +xo ::o:s
:::c a :xa +v: cv : a , : :o +xo
::n:oc: ::o,:o :a v:+ :: :o:+,
,n++ n::co: as :o,a :a :
: c:os: n:: soo+ snvca ::n:::aa:
.n:o+s :v ::o :a +v:a c:sa ::
+aa:: :,::: ca:s cv: :: : :
:o:a n::: ns +s :a +vc:: c::c::
,oo :a co,o ::s a: .::osa:
ns :+a: :::o: +s ca .n:oo
::o ::::voa soo+ snvca: ,::+: +
+ co: :a: n:v:: c::o :s: as s n
+:aa: :s:o nas ,n:+ no::o
:: : coao ::s ,a :oa .n::a
n::: n:a: o:+, oa ++ c:sa
:ao ::oo: :a : :on:: :: : ::v:o
c :oa: s:o n::: :v +s :a :ooo
c::o: a ::s .n:a ov oo :av :a
:a ns nxx oaa coao: c::ao
.:v: o::co: a:nao o
[ ,::s n::o:s ::o:s na n:::c +s +xo
[: :::c na n::o:s +v: cv : a , : :o +xo
::o,:o :a v:+ :: :o:+, :xa
n::co: as :o,a ::a :: ::n:oc:
n:: soo+ snvca ::n:::aa: ,n++
:v ::o :a +v:a c:sa ::: :: n::os:
:,::: ca:s cv: ::: :: : .n:o+s
n::: ns ns :a +vc:: c::c:: +aa::
,oo :a n:o,o ::s a: .::osa: :o:a
ns :+a: ::no: +s ca .n:oo
::o ::::voa soo+ snvca: ,::+: +
+ co: :a: n:v:: c::o :s: as s n
+:aa: :s:o nas ,n:+ no::o
::: :: n:oao ::s ,a :oa .n::a
n::: n:a: o:+, oa ++ c:sa
:ao ::oo: ::a :: :on:: ::: :: ::v:o
c :oa: s:o n::: :v ns :a :ooo
c::o: a ::s .n:a ov oo :av :a
:a ns nxx oaa n:oao: n:::ao
.:v: o::co: a:nao o
,:v: :a:: o:a : :oo :v ::on:
/ohheu ;e,u rurc kfvu
_______________________ _______________________
vnh,j vnh,j
147. What follows is not a Ketubbah. First of all it is signed by the couple and not by witnesses;
secondly it contains no financial provisions. It is a solemn declaration of intent.
37
Dear David
Homosexual Relationships - A Halakhic Investigation
::o:s a:
, + a_ v oo + :_ v a:n a_ , ::n_ a n o : o o_ a : a_ a :: a : a ,:: n:a_ s :s : :: :_ s
. : : : s : : e : s . : o o : a : a :::o s a , o+ , c_ v ,: : a: :_ _ s c o ::o_ s
.c:: o : c o : : s : : e s :c::v: . o s
. o_ : o a : c _ : c s a c :_ s c a o o . s : : : : , a : : o a c :_ s a o o
:+ c:o:s
:s
n s :_ v_ s s: c s , a : a : s s: c s a : ::o : ,_ a + n . : o _ a o n ,c : o:: a o s c s
. n o o os: :_ v c _ : o::
:c:o: n:c:a :o c:a:o:
.: s : o : a :: :: : s a:o : : _ o: a:o o c a
148. The couple recite together the well-known quotation from Psalm 137:5-6 and then each breaks a
glass.
38
Dear David
Homosexual Relationships - A Halakhic Investigation
One colleague whose opinion I value very much challenged my assumption that what
the Torah is prohibiting is anal penetration. He argued that perhaps it is penetration
of the mouth that is meant. While it seems to me obvious that our halakhic tradition
has always understood the penetration to be anal I take up the challenge to
substantiate my claim that our sages throughout the ages have understood those two
biblical verses as prohibiting anal penetration of one male by another. This is not as
simple as it seems since the sages almost invariably use euphemisms whose meaning
they assume everyone understands.
In many places
149
the Talmud points out that in these verses the essential Hebrew
word for copulation is in the plural; the Hebrew term vat hcfan mishkevei ishah
(literally "copulations with a woman") is explained as indicating that there are two
ways that heterosexual copulation may take place. These two ways are called by the
sages vfrsf tkau vfrsf. We can translate this phrase as "normally or not normally".
Obviously, "normal" heterosexual sex refers to penetration per vaginam. Is it
justified to assume that what the sages mean by "not normal sex" is penetration of the
woman per anum, as is generally assumed?
150
Jeremiah 3:13 is part of an extended metaphor which sees Israel as a wife who has
given herself up to promiscuity. The verse reads as follows:
hkuecu ibgr .gkf ,j, ohrzk lhfrs,t hrzp,u ,gap lhvkt wvc hf lbug hgs lt
:wvotb o,gnatk
Only acknowledge your iniquity, that you have transgressed against the
Lord your God, and have scattered your ways to the strangers under
every green tree, and you have not obeyed my voice, says the Lord.
Rashi explains the enigmatic phrase "scattered your ways" as "promiscuity; opening
wide your legs as in vat hcfan" - "copulations with a woman". Here, Rashi's
graphic description of the phrase mishkevei ishah rules out any possibility of the
phrase indicating penetration of the mouth! That leaves only two other possible
orifices. Is it justified to assume that the phrase means penetration per anum?
In tractate Nedarim 20a the Gemara describes calamities that could befall married
couples who engage in sexual obscenities. Most of the phrases are, of course,
euphemistic. One of them describes a married couple as "turning the tables". Rashi
explains this euphemism as meaning "face to back: they mount their wives not
normally". While it is reasonable to assume that what is indicated here is that "not
normal sex" indicates anal penetration (and almost certainly does not refer to
penetration of the mouth!) we must allow for the remote possibility that it means to
indicate vaginal penetration from the rear.
Several of the ohbuatr Rishonim
151
state that a husband should not copulate with his
wife "not normally" since he would not thus deposit his seed "in the right place".
This proves that the term mishkevei ishah must indicate anal and not vaginal
penetration.
149. For example, Kiddushin 22b and very many other passages. See also Sifra Kedoshim 10:9.
150. For example, in his explanations on Nedarim 20a Rabbi Adin Steinsaltz automatically assumes
that the term vfrsf tka which we have understood to be "not normal sex" refers to anal penetration of
the wife by the husband.
151. See Tosafot on Yevamot 34a s.v. lu,n; Rambam Issurei Bi'ah 21:9; Tur (and Rema) in Even
ha-Ezer 25:2.
39
Dear David
Homosexual Relationships - A Halakhic Investigation
However, I think that I can conclusively substantiate the claim that mishkav zakhur
was understood by our classical authorities by reference to a responsum of
Maharshadam
152
. This responsum was concerned with a case that came before a Bet
Din concerning a shochet yjua (ritual slaughterer) whose morals were being
impugned. Maharshadam reports part of the evidence as follows:
rdu,u tuv sjt rpfc lkuv vhv rcga .hev vzc lht shgvu ohxb rc sus tc sug
,urhp ovk rufnk xsrpv ,kgck turek hsf xsrpv rsdn onmg uyvu ung sjt
o,ut utrafu rufz cfanc ung gcrb vhva rjt rujc og vz ueaunk oa utru
///ohruae h,kc ohxbfnv og ujrcu uvgr kgn aht usrp,bu ujrc
Then David ben-Nissim came and testified [before the Bet Din] how
that same summer he and a Turk had been walking in a certain village.
They leaned over the orchard's fence in order to call to the woman who
owned the orchard to sell them some fruit. There they saw this
Moshico with another lad who was comitting sodomy with him as
mishkav zakhur. When they saw them they ran away in separate
directions with their trousers unhitched...
The Hebrew term here used by Maharshadam, gcrb, can only indicate anal penetration
and it is specifically associated by him with mishkav zakhur.
Having established this fact we can return to our interrupted discussion.
152. Responsa of Rabbi Shemu'el di Modena [1506-1590], Even ha-Ezer #3.
40
Dear David
Homosexual Relationships - A Halakhic Investigation
Before we leave the subject of mishkav zakhur I would like to address a very human
element into the discussion. It is very simple to make the bald statement that mishkav
zakhur is forbidden - and certainly there are many gay men who refrain from anal
penetration, most I would guess for reasons which are not religious
153
. Also, bearing
in mind that this paper is directed towards the religious Jew, it is reasonable to assume
the he would want to subordinate his desires as much as he can to the dictates of
Torah. However, for very many gay men the prohibition of mishkav zakhur is almost
the equivalent of a prohibition of vaginal penetration in heterosexual sex. This
demand that the Torah makes of them is very difficult indeed for them. On the one
hand it is true that the Torah also imposes certain prohibitions on heterosexual
copulations, the most obvious being the prohibition of sexual intercourse with a
woman who is niddah. But the couple who scrupulously observe the restrictions of
niddah know that full sexual relations will be resumed after the passage of eleven or
so days. The prohibition of mishkav zakhur is, however, a blanket prohibition.
Therefore I think that we must accept that however earnestly two religiously
motivated gay men may try to observe the prohibition of mishkav zakhur there is a
great possibility that sometimes they will not be able to withstand their rmh, their
natural impulse. What should these men do in such circumstances? Again, in order
not to interrupt the flow of this paper I have included my hesitant advice on this
matter in Addedum 2 at the end of this paper.
This is a very hard question to answer for a rabbi who is committed to a halakhic
thesis as expounded so far in this paper. Nevertheless, for reasons of intellectual
honesty, halakhic integrity and sheer human kindness it is a question he or she may
not avoid. I base my advice on a biblical verse:
154
/lh,jrt rahh tuvu uvgs lhfrs kfc
In all your ways acknowledge Him, and He will direct your paths.
This verse is quoted in the Talmud
155
with a very interesting comment.
uvgs lhfrs kfc" - ?vc ihuk, vru, hpud kfa vbye varp hvuzht :trpe rc ars
/vrhcg rcsk ukhpt :tcr rnt /"lh,ujrt rahh tuvu
Bar-Kappara stated the following midrash: which is a small verse upon
which hang all the basics of Torah? It is "in all your ways
acknowledge Him, and He will direct your paths". Rava said: even
when you sin.
What is Rava adding to the plain meaning of the verse which Bar-Kappara says is an
essential part of Torah observance, something on which all the major issues of the
Torah depend? He is saying that if, even when you sin, your thoughts and intentions
are directed to love of God, He (God) will consider your action as worthy. In the
Torah
156
we learn how the two nations of Moab and Amon were generated by two acts
of incest. Yet Rabbi Ovadyah Sforno, in his commentary on that verse, applies the
thought that we have just enunciated here:
,mec ovrct haruh ohud hbak ogrz vhv vhumr ohabv ,buuf v,hva hbpn hf
/vrhcg rcsk ukhpt uvgs lhfrs kfc orntf
153. See note 25 above.
154. Proverbs 3:6.
155. Berakhot 63a.
156. Genesis 19:38
41
Dear David
Homosexual Relationships - A Halakhic Investigation
Because the intention of these women was worthy their descendents
became two peoples tracing their descent from Abraham, as is implied
in the rabbinical teaching, "in all your ways acknowledge Him" - even
when you sin.
So, my advice would be that if occasional weakness results in mishkav zakhur, thank
God for the deep love that prompted the act and for the deep emotional sense of
togetherness and the ecstatic union of souls that in its turn the act generated. Go out of
your way to relate to others with a shadow of that outpouring of love that you have
been privileged to experience. Go and give vesm charity to the needy or to a worthy
cause as an expression of a deep gratitude to Heaven and a desire that others share a
modicum of the happiness you have been vouchsafed. Be loving, kind and
considerate to each other, and then try to emulate the ecstatic joy of the physical love
you have experienced in your spiritual relationship with God - "and He will direct
your paths".
157
157. Also bear in mind sincere repentance and Yom Kippur.
42

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