Conservative Judaism and sexual orientation

One responsum, by Rabbis Elliot N. Dorff, Daniel Nevins, and Avram Reisner, reduced the extent of traditional restrictions and substantially changed Conservative views on homosexual conduct. It characterized most such restrictions as rabbinic in character. It found rabbinic restrictions subject to reconsideration by the CJLS under its interpretation of the principle of Kavod HaBriyot, the Talmudic rule of legal reasoning that rabbinic (but not Biblical) restrictions can be overridden on the basis of "respect for others" or "human dignity". Holding that the concept of kavod habriyot interpreted as human dignity reflects Conservative Judaism's evolving understanding of human nature, it found rabbinic restrictions on homosexual conduct inconsistent with human dignity contemporarily understood and accordingly declared such restrictions lifted. Finding that it lacked authority under the kavod habriyot principle to lift biblical prohibitions, it analyzed the Biblical passages involved and found that male-male anal sex was the sole De'oraitha (Biblical) restrictions. It held that as a Biblical prohibition such conduct remained prohibited in Conservative Judaism. The responsum permitted Conservative rabbis to allow same-sex union ceremonies, and gave the option for Conservative rabbinical schools to admit and ordain openly gay, bisexual, and lesbian rabbis. It held that same-sex couples should be presumed not to engage in prohibited conduct in the same way that Conservative Judaism presumes that married heterosexual couples observe sexual prohibitions such as Niddah.[3]

The responsum begins with a quote from Rabbi Abraham Yitzhak HaKohen Kook,

The light of the Messiah, when it blazes in the heart, teaches one to dignify all people: “It shall be on that day that the root of Jesse will stand as a sign to the nations, and peoples will seek him, and his consolation shall be dignity." (Isaiah 11:10)[3]

After a discussion of contemporary theories of sexuality and a warning against promiscuity, the responsum interprets Leviticus 18:22 and 20:13 as pertaining to male-male anal sex only:

Ancient authors employed euphemism when describing sex, making it difficult to prove exactly what activities they understood to be included within these verses. Is it possible that the biblical prohibition called mishk’vei ishah and later, by the Rabbis, mishkav zakhur, includes actions other than anal intercourse? These verses have been variously translated, but almost all readers conclude that they prohibit anal sex between men, with the first verse addressing only the insertive partner, and the second verse including the receptive partner.[3]

We have demonstrated that only one form of homosexual intimacy, anal intercourse between men, is prohibited at this level as an ervah. We must conclude that any Jew who seeks to fulfill the Torah's commandments must avoid this forbidden act.[3]

The responsum also insisted that Jewish law could not be interpreted any more permissively:

In contrast, our colleagues Rabbis David Fine, Robert Fine and Myron Geller have argued that the verses in Leviticus should be understood to prohibit only those sexual relationships that offer no possibility of marriage. In an age when gay marriage is permitted by some jurisdictions, they argue, the Torah's ban is no longer universal. Although they present their reading as “the p’shat,” there is nothing simple or contextual about this interpretation. Nowhere does the passage mention marriage. The list of forbidden sexual relations includes menstrual sex, which can occur within a marital context. It is hard to accept that the Torah forbids bestiality only because it offers no opportunity for marriage. This reading, too, is sui generis — unsupported by either ancient or modern commentaries.[3]

The responsum described rabbinic prohibitions on sexual relations as mere fences, many of which, it said, the Conservative movement had already lifted. It compared Rabbinic prohibitions on homosexual conduct to strictures on a husband approaching or touching his wife during the Niddah (post-menstrual) period:

However, our community does not enforce, and indeed does not accept, these severe prohibitions. We do not hold, as a matter of fact, that the laws of ”approach” are biblically mandated, but rather that they are in the category of rabbinic fences and borders that are all ultimately intended to protect against transgression of the fundamental biblical rules about sexual conduct. Just as the Sages of old exempted themselves from some of the severity of the laws against contact between the sexes between relatives,45 so have we concluded that average people can be trusted to maintain appropriate relations despite social kissing and hugging and moments alone together, even behind locked doors.

This teshuvah makes a distinction between a Torah mitzvah and later rabbinical fence laws. It argues (page 8) that:

"We conclude that there is only one prohibited sexual relation of arayot among homosexual behaviors, which is anal sex between men, and that other restrictions have no basis in biblical legislation. ...While some readers might conclude from the texts reviewed above that Jewish law imposes a universal and undifferentiated ban on all homosexual intimacy, we must emphasize the nuances found in this literature. ...The Torah's most severe sexual prohibitions are identified as ervah (plural: arayot). In antiquity, these were punishable by death as well as by the severe divine penalty known as karet. Of these sexual prohibitions alone did the rabbis teach, yeihareig v’al ya’avor, that one should die rather than transgress. We have demonstrated that only one form of homosexual intimacy, anal intercourse between men, is prohibited at this level as an ervah..."

The responsum questioned whether requiring celibacy for same-sex couples was feasible, quoting Deutoronomy 30:11–14:

For this mitzvah which I command you today is not too grand for you, nor is it far away. It is not in heaven, that it be said, ‘who will ascend to heaven to get it for us, and teach us how to do it?’ It is not across the sea,...

The responsum invoked and extensively commented on the concept of Kevod HaBriyot, "human dignity," noting that the concept is traditionally limited to Rabbinic enactments:

So great is human dignity that it supersedes a negative commandment of the Torah. Yet no sooner is this potentially radical principle enunciated than it is limited specifically to the commandment that establishes rabbinic authority, , לא תסור “do not stray from the law they [i.e., the rabbis] teach you right or left.” This concern for human dignity is cited in both Talmuds to override certain injunctions, but it is not considered capable of overturning an explicit biblical rule.[3]

After an extensive discussion of this principle, the responsum applies it to declare all rabbinic prohibitions on homosexual conduct overridden, leaving only what it finds to be the biblical one:

It is not possible to set aside the explicit biblical prohibition on anal sex that is stated twice in Leviticus and frequently reaffirmed by the Rabbis. As we have shown, the kvod habriot principle supersedes rabbinic, not biblical law. Of course, there is a theoretical way to overturn biblical law via the legislative mechanism of takkanah (decree). We do not find this mechanism to be appropriate in our case, because takkanah requires the consent of the majority of the population, and this subject remains quite controversial in the observant Jewish community.

However, the rabbinic restrictions upon gay men and lesbian women that result in a total ban on all sexual expression throughout life are in direct conflict with the ability of these Jews to live in dignity as members of the people of Israel. For this reason, the halakhic principle of gadol k’vod habriot must be invoked by the CJLS to relieve their intolerable humiliation. We must make open and rigorous efforts to include gay and lesbian Jews in our communities, to provide a proper welcome and a legal framework for the normalization of their status in our congregations.

In conclusion, the responsum declined to rule on the status of same-sex relationships, but declared that "the celebration of such a union is appropriate."

We are not prepared at this juncture to rule upon the halakhic status of gay and lesbian relationships. To do so would require establishing an entirely new institution in Jewish law that treats not only the ceremonies and legal instruments appropriate for creating homosexual unions but also the norms for the dissolution of such unions. This responsum does not provide kiddushin for same-sex couples. Nonetheless, we consider stable, committed, Jewish relationships to be as necessary and beneficial for homosexuals and their families as they are for heterosexuals. Promiscuity is not acceptable for either homosexual or heterosexual relationships. Such relationships should be conducted in consonance with the values set out in the RA pastoral letter on intimate relationships, “This Is My Beloved, This Is My Friend”: A Rabbinic Letter on Human Intimacy. The celebration of such a union is appropriate.

The CJLS also adopted two restrictive responsa, one as a majority and one as a minority opinion. The majority responsum, by Rabbi Joel Roth,[4] was also adopted by 13 votes. It maintained traditional prohibitions on homosexual conduct and forbade Conservative rabbis from blessing same-sex unions and rabbinical schools from ordaining gay, bisexual, and lesbian clergy.[5] On December 10, Rabbi Roth published an editorial in the Jewish Theological Seminary's newsletter JTS News providing some of the reasoning behind his responsum and explaining why he resigned following the CJLS's vote."[6]

According to Rabbi Roth, the central problem with the permissive responsum is that it adopted a claim that the Biblical prohibition on homosexual conduct is limited to anal sex only based on insufficient support in precedent, the view of only "one sage". Rabbi Roth argued that it is impermissible to adapt such a minority view:

What divided us was the question of our right to adopt a legal stance attributed to one sage that the prohibitions against sexual behavior other than male intercourse are rabbinic in status, d’rabbanan, and not biblical, which attribution is itself open to serious question and is denied by most decisors.

Rabbi Roth also said that "Even if the prohibition against sexual behavior other than male intercourse is rabbinic in authority and not biblical, what justifies our abrogating that prohibition?" He argued that the Talmudic concept of Kavod HaBriyot, which the permissive responsum used as justification for doing so, is simply not the same thing as the idea of "human dignity" in contemporary liberalism:

In almost all of the cases in which the category is invoked, the claim is that X may violate the law out of deference to the honor of Y. In the case under discussion, X is to be entitled to violate the law out of deference to his own honor, for which claim there is no real precedent.

What's more, such a claim is theologically weak, since no law-abiding Jew would ever entertain the possibility that his honor would supersede that of God. And in the few cases of application of the category which can possibly be understood to imply that X may violate the law out of deference to his own honor, X is always literally in a social context and in the presence of others.

Rabbi Roth stated that in his perception, the supporters of the permissive responsum were blinded by their predisposition to rule favorably and were unable to view the issue with a dispassionate legal mind.

How halachically defensible does an argument have to be before it can be considered within the halachic ballpark? We all understand and agree that decisors of Jewish law often approach the subject before them with a predisposition to give a specific answer. There's nothing wrong with that, in my opinion. What, then, distinguishes a good decisor from a poor one? The good decisor is able to judge his decision with enough dispassion to see whether his predisposition has blinded him to the indefensibility of his answer, and the poor one is not. It is my opinion that my colleagues have here been blinded to the indefensibility of their conclusion. ."[1]

Rabbi Roth argued that the halakhic legitimacy of the Conservative movement was at stake:

What is at stake here, for me, and I believe for the Committee on Jewish Law and Standards as a body, is whether the Law Committee can continue to be seen as a halakhic decision-making body. For all of the breadth I believe that there is for pluralism within halakhah, some decisions are outside those boundaries. If we make such a decision, we are no longer legitimate halakhists, we undermine our authority as the interpreters of God's will, and we render the Law Committee halakhically irrelevant.[7]

Rabbi Roth ended by articulating what he regarded as the fundamental difference between the traditionalist and the liberal wings of the Conservative movement. From the traditionalist point of view, acceptance of the hypothesis that the Torah was transmitted through multiple manuscripts and redactors in no way changes its status as a Divine, "legally infallible" document, a "given" reality to which any theological theory must conform:

That, then, brings us to the following issue: Assuming that the type of biblical scholarship we have all been taught is correct, does that mean that the Torah is, in fact, not Divine and legally infallible? I believe that it does not mean that. The argument here is over the following issue: Is theology the dog which wags the tail called halakhah, or is halakhah the dog which wags the tail called theology? It cannot be both ways.

There can be no real doubt that normatively speaking the halakhic tradition is the given, and theology is required to fall into place behind it. Theology can, indeed, should, provide the narrative which makes the halakhic tradition intellectually persuasive and emotionally acceptable and satisfying, and that narrative can change as needed, and it need not be the same narrative for everyone. Narratives, after all, are aggadic, and thus, neither normative nor binding. That claim, incidentally, in no way diminishes their importance. Whatever narrative works is fine, so long as the narrative does not reverse which is the dog and which is the tail. In this enterprise we are again in a long chain: Sa’adia Ga’on did it, Yehuda ha-Levi did it, Maimonides did it, Samson Rafael Hirsch did it, David Zevi Hoffman did it, and Joseph Hertz did it. Our movement's thinkers and theologians are as competent to provide a modern and persuasive theology of halakhah as were the thinkers of the past. But, we, like they, cannot undo the foundational premise of the entire halakhic system – that the Torah is Divine and legally infallible.[7]

Rabbi Leonard Levy's responsum, adopted as a minority opinion by six votes, delineated ways in which to ensure that gays and lesbians would be accorded human dignity and a respected place in Conservative communities and institutions while maintaining the authority of the traditional prohibitions against same-sex sexual activity.[8]

The CJLS rejected a proposed responsum by Rabbi Gordon Tucker which would have lifted all restrictions on homosexual conduct. Although it gained seven votes, the minimum to accept a responsum, it was classified as a takkanah (legislative decree) rather than a judicial interpretation. By CJLS procedural rules a takkanah requires 13 votes to pass. Accordingly, it was published as a dissenting opinion with a note that "concurring and dissenting opinions are not official positions of the Committee on Jewish Law and Standards".[9] The fundamental premise of the dissenting opinion was that the Torah is not infallible, legally or otherwise, but is subject to reconsideration based on subsequent knowledge:

When someone says, “What can we do? The Torah is clear on the subject!”, what is being said amounts to a claim of infallibility and irrefutability for the text of the Torah. And that claim ultimately rests on the assumption that the words of Leviticus (and, of course, those of the other four books of the Pentateuch) express directly and completely the will of God. (Indeed, treating a text as infallible on any basis other than on such an assumption would surely count as a form of idolatry.) But that assumption (that the Torah is the direct and complete expression of God's will) is one that, for all its currency in parts of the Jewish world, is not accepted in our Conservative Jewish world.[9]

No, the time has come for a movement that has finally published a Humash commentary that reflects the theology our masters have taught us to “come out of the closet”. It is past time for us to be, in the prophet Elijah's words, “hopping between two opinions”. If the axiom behind this theological argument is to be accepted, then let us forthrightly admit that we have been misled by the teachers at whose feet we have sat. But if we confess that we do not accept the axiom of biblical infallibility, then let us honor our teachers by abandoning this theological argument, and by no longer permitting ourselves to say, when the matter of gays and lesbians comes up, “What can we do? The Torah is clear on the subject!” Could it perhaps be that critical study itself was given to us precisely so that we would not let the text of the Torah stand as an impediment to the acceptance, fulfilment, and normalization of God's creatures?[9]

Rabbis Myron Geller, Robert Fine, and David Fine wrote a dissent arguing for complete abolition of strictures against homosexual conduct, and explicit recognition of same-sex religious commitment ceremonies, on grounds that strictures were no longer socially relevant and religious support was now socially required. The opinion characterized Halakha as

a historically based religious/legal system that reflects the values, ethics and circumstances of the Jewish people at any particular period and whose evolving judgments, including those recorded in Scripture, are expressions of Jewish ideals in a given place and time.

The responsum argued that so regarded, Halakah can and should be updated to reflect changed values and social circumstances as they arise.[10]