A Second Look at Homosexuality

by Harold M. Schulweis

The rabbis in the Talmudic era declared that two bachelors are permitted to sleep beneath the same blanket because Jews are not suspect of homosexuality (Kiddushin 82a). Were the rabbis treating homosexuality in the first centuries the way we once dealt with drug addiction, alcoholism, wife abuse, declaring, "This is not a Jewish problem"?

We can pretend that it is not a Jewish concern, though a number of scholars have speculated that homosexuality exists in 10% of the population, and by extrapolation likely pertains to 10% of the Jewish population. There are none so blind as those who will not see.

Many years ago, the issue of homosexuality was for me a matter of theoretical interest. Intellectually, I knew there were homosexuals, but personally I knew none. Whoever they were, they were well closeted, out of sight, out of mind. These last years they have lost their anonymity. Blood and flesh persons come into my study, visible and audible with faces, eyes, lips who have come to see me. Out of desperation, they have left their cloistered lives to reveal themselves.

Why have they come to me? I am not their parents. But parents are the last ones they would speak to. They are too ashamed and too frightened. They have come because I am a rabbi and because I represent Jewish ethics and Jewish law. They have come because some I have confirmed and some have heard me speak about God, love, compassion and justice in class and from the pulpit. They have heard me teach that a root principle in Judaism is our belief that God has created each of us in His divine image.

They do not feel that they were created in God's image. Quite the contrary, they feel that no one regards them as human, normal, or recognizes their personhood.

They have come carrying a terrible knowledge, one they discovered early in their lives. They are attracted to persons of their own gender. Theirs is a fateful knowledge. As they grew up they heard whispers grown into roars, stories about gays who are unnatural, perverse, pathological, sinful. They dress differently, molest children, and are wildly permissive, hedonistic, outrageous. They have seen them portrayed on the stage, on television, gay men who lisp and are swishy, effeminate wimps whom others call "feigele-boychik," who live in wretched places, hang out in dark bars and dark bath houses. And they have heard of lesbian women called "dykes,” "butches,” angry, unattractive, emasculating, man-haters.

And those who come to me know that they are hated, rejected, mocked, scorned, reviled. They are frightened.

The hatred they know is not confined to the inner city or to people of different ethnicities, faiths, or races. At Calabasas High School in Woodland Hills California, on the night of his high school graduation, Robert Rosenkrantz shot his school mate Steve Redman ten times with an Uzi semi-automatic rifle. What turns a white middle class teenager, Robert, into a murderer? It was fear, rage, desperate loneliness. The friend, Steve, and his brother Joey had spied on Robert in an attempt to prove that he was gay. When they caught him in a homosexual encounter, they told his parents. At the trial, Robert disclosed that he had hidden his homosexuality from his family for years in fear of their rejection. Wendy Bell, aged sixteen, a student at Calabasas High said, "If people found out you were gay at this school, you would be verbally tortured."

What greater humiliation than to discover that in the eyes of your society you are really not human. What makes a human being human more than his ability to love and be loved? But they are not lovable and are not allowed to love. They live in silent shame, fearful of the revelation that will shake the foundations of their being.

Theirs is a monstrous burden to carry. Even the most innocent question is fraught with emotional terror. Just to hear, once more, well-meaning aunts and uncles say, "Do you have a boyfriend?” or to hear someone plan to set up a date, sets up a panic in their hearts. Do others not know? How long can I bite my tongue?

They have come to see me because I am a rabbi and they are Jews. Every Yom Kippur, they hear the same selection read from the Torah which sanctifies homophobia. It is chanted in the afternoon of Yom Kippur, when some report headaches and the discomforts which come with fasting the entire day. But this young man, who ironically reads from the Torah, has more than a migraine and not from fasting. It is written, "If a man lies with a male as one lies with a woman, the two of them have done an abhorrent thing. They shall surely be put to death. Their blood shall be upon them." It is a capital crime punishable by stoning – sekilah (Leviticus 18:22 and Leviticus 20:13). This aliyah is no elevation. It casts him into despair.

What do they want of me? Absolution? Assurance?  Protection? A Jewish voice? What does the law state? What does Judaism say?

I am faced not only with a text of a few verses, but with human beings I know and whose families I know. I look from the law into the eyes of those before me. Without them, it might be an easier matter to judge. But the Talmud says: "You have to judge according to that which you see with your own eyes" (Baba Bathra 43a).

What do I see with my own eyes? Honest, decent God-fearing, loving men and women. And what do I hear but the penetrating words of Micah, the prophet who tells me what God requires:  "It has been told you O man what is good and what the Lord demands of you -- to do justice, to love mercy and to walk humbly with the Lord thy God."

What is just and merciful here? The persons who have come to me carry their own testimony. They have not chosen a lifestyle. Theirs is not a matter of sexual preference. They have chosen nothing except to bury the terror. "It has been for me a living hell. I no more chose my attachments to another of my own gender than you, Rabbi, chose the love of a woman. It was not something taught or modeled or revered in my home or in my circle. But I sensed it early in my childhood. I denied it, fought it, but it would not be denied."

I read that most psychologists maintain that sexual orientation is determined by the time the child is five years old. 

I am told by the wisdom of halachah  to listen to the heart of the one who stands before me. As the Talmud (Yoma 83) cites the verse (Book of Proverbs 14:10), "The heart knows its own bitterness and a stranger cannot share in its joy." The verse is cited by the Rabbis in the context of declaring with people who are ill on Yom Kippur. "If a sick person says he must eat and a hundred physicians say he does not need to eat, we must listen to him. For the heart knows its own bitterness."

Those I speak to in the privacy of my study have not chosen their sexual orientation. Their testimony of the heart is important in the mind of halachah . According to Jewish law, activities that are under compulsion or constraint, even if they are prohibited, are free of liability. "Patur aval asur." Say I have vowed to do X, and can't fulfill it because of a flood or because of sickness, is not punishable. The halacha recognizes that an act must be free if it is punishable, and behind this ruling reigns a religious statement from the Mishnah:  "The Merciful One frees from punishment one who is coerced (Mishnah Nadarim 33).

Scholars agree that the authors of the Bible and Talmud took their position on the issue of homosexuality on the assumption that homosexual behavior was an act of freedom of choice, that the homosexual acted either to defy God, or to oppose the law, or as a holy prostitute using his or her body, to serve a pagan cult.  The assumption of the ancients about the motivation of the homosexual was based on factual error. One cannot blame the rabbis of the first centuries for not knowing the etiology of homosexuality, or the character of constitutional homosexuals. They judged acts with the knowledge of their time. But it does not exonerate rabbis living on the edge of the twenty-first century. One cannot blame the ancient rabbis for their position on the matter of homosexuality any more than they could be blamed for the Talmudic position on the deaf mute, the "cheresh.”  In the Talmud a "cheresh" fell into the category of a "shoteh" and a "katan,” a person who was "non compos mentis" -- someone who was mentally incompetent. Therefore until the 19th century halachists held that the deaf mute cannot serve as a witness, dispose of property, be counted into the minyan, effect a marriage or divorce. The assumption was clear. Since the "cheresh" cannot communicate, cannot speak or hear, he was considered to be "dumb,” a word which originally meant mute and was turned into a colloquial expression meaning stupid.

But traditional law is not frozen. When Rabbi Simchah Bunem Sofer of Hungary, on a visit to the Vienna Institute for the Deaf and Dumb, observed the accomplishments of its students, he recognized that the "cheresh" is far from mentally incompetent. And in our times, Rabbi Isaac Halevi Herzog maintained that the laws prohibiting the deaf-mute from ritual and commercial acts are now void, and that the " cheresh " today can indeed participate fully in religious life.

It is a calumny against halachah  to treat it as so much dead weight. Those who know its history know that halachah  changes with new knowledge and with new moral sensibilities. Consider only the cases in which the rabbis nullified or circumvented the biblical law as in the case of the "ben sorer v'moreh" – the rebellious delinquent son who could be brought to the elders and be stoned for his abominable acts (Deuteronomy 21:18) or the case of the "sotah,” the wife suspected of adultery to whom the “Ordeal of Jealousy” was given (Numbers 5:12), or the case of the "ir nidachat" -- the heretical city tainted with idolatry which was to be destroyed (Deuteronomy 13:13). All these biblical laws were dismissed by the rabbis of the Talmud as purely theoretical but having no application to life. "Lo hayah v'lo atid lihyot." The same Talmudic courage and sensitivity should be applied to the homosexual who testify that their sexual orientation is not an act of will.

Moreover, we are dealing with mounting evidence that there are genetic factors which play a large role, perhaps a determining role, in this behavior. On both moral and Halachic grounds, it is wrong to take one or two verses in the Bible, stripped of their historic context and devoid of medical knowledge, and apply them to punish innocent people who cannot deny their basic instincts, impulses and sexual attractions. To inflict punishment upon the innocent violates the spirit and intent of Jewish law.

There are questions from people, far from homophobic, that deserve answers. I have heard it said that if this inclusiveness toward homosexuality is accepted, why not extend that same kind of tolerance toward the non-converted mixed married? But when we speak of homosexuals and gays, we are speaking about Jewish homosexuals and Jewish gays upon whom we make the same demands of loyalty to people and to Jewish faith. We make Jewish religious and moral demands upon Jewish homosexuals and Jewish gays in the same manner that we do for Jewish heterosexuals. Faith and religion are matters of choice. The non-Jew can freely become a Jew by choice. The non-Jew can convert, but the homosexual cannot convert his/her sexual orientation.

For those who are constitutional homosexuals, there is no option except denial of their sexual life. It means for me to deny them the deepest expression of love. What else can be said to the Jewish gay person? Their options are "either closet or cloister." For them, there is no alternative but celibacy and sexual abstinence. That counsel is contrary to the affirmation of life and of sexuality that is so basic in Judaism and in its opposition to sexual askesis. Contrary to Stoic, Christian and Buddhist philosophies, even medieval Jewish pietistic mysticism did not encourage the denial of sexual expression. To the contrary, the joys of sexuality were lauded as manifestations of God's beneficent creation. Shall I respond to the yearnings of their heart by saying "Get thee to a monastery. Get thee to a nunnery?"

I hear it further said that if homosexuality is countenanced, why not condone polygamy a practice that is not even enjoined in the Torah?  But monogamy is not a deprivation of sexual expression. If there is serious dissatisfaction, the Jewish divorce offers relief. If anything, polygamy is an excess of choice. Nor is the prohibition of incest or bisexuality analogous to homosexuality. For these there are alternative sexual expressions. For the homosexual, there is no sexual expression except a sexless existence in which even masturbation is halachically prohibited. Would a loving God create such a being in His image to be condemned to life-long suffering and frustration?

Others argue that the purpose of union and of marriage is procreation, and that homosexuality is prohibited because it denies history, denies the future and defies the purpose of marriage. Are we not mandated to multiply and fructify and fill the earth? Is that argument not further substantiated by the Talmudic ruling (Yebamoth 64a), "If a man took a woman and live with her for ten years and she bore no child he may not abstain any more from the duty of propagation." Consequently, the man is justified to divorce her and to marry another after a decade of barrenness. Yet, the rabbis could not find it in their heart to dissolve such a union. "Lo m'laah libam.”  Such a divorce would wrong another human being. They may live together since the purpose of union is not just procreation. The purpose of union includes the blessedness of companionship and of love that does not always eventuate in having children.

Were having children the only justification of marital union, would we deny "kiddushin" because of the infertility or medical disability of either or both bride and groom? The head and heart of halachah  concede that procreation is not the only goal of human sexuality.

Moreover, in an age in which artificial insemination and adoptions exist as choices, a homosexual union is not a barrier for the raising of family and the having of children.

There are numerous questions that are raised about the etiology of homosexuality. But ultimately, my Jewish response to the lot of the homosexual remains a moral one. There is a morality in Jewish law that must not be ignored. As a moral, spiritual Jew I have to ask myself not only what the literal law declares but, especially in this issue where the law consigns to living hell such innocence, I feel obligated to deal with the purpose and intent of Jewish law.

I have been taught and believe that Jewish law is not a dead hand without heart and soul. Even the most stringent followers of the halachah would not today apply the law that demands death to the homosexual. Who calls for us to criminalize homosexuality?

The underlying issue is moral, not textual. We cannot as thinking, feeling Jews base our judgment on a verse or two in the Bible. There is an entire corpus of religious text and spiritual principles that forms rabbinic conscience. "The Torah's ways are ways of pleasantness and all its paths are peace." The Torah cultivates Jewish conscience. It reminds us that we are to love the stranger and to know his heart. If we don't know the heart, if we do not know the humanity of the pariah, we do not know our own humanity. As long as we have not discovered the stranger in our midst as "human being,” we will not discover our own humanity.

The community and its rabbinic leadership have powers to turn the earth into a living heaven or hell. Over some issues we mortals have little control. We have little control over natural catastrophes: earthquakes, floods, hurricanes, tornadoes. But there are catastrophes over which we have control because we have created them. The curse upon the gay person we have pronounced. This tragedy we have imposed on our children is not the will of God. It is our doing. The blessing and curse, life and death given us is our choice. We are not coerced to silence.

The law is not a monster. Jewish halachah was not instituted to make life miserable. On the contrary, it was to enhance life, to introduce love and compassion and softness into a hard and abrasive universe. The entire rabbinic tradition was motivated to make the ways of the Torah pleasant and joyful and peaceful.

A wonderful commentary by Maimonides in his Book of Laws regards the Sabbath. There he explains that the commandment of the Sabbath, while it is a biblical law, may be set aside if human life is in danger. "If it is uncertain whether the Sabbath needs to be violated or not or if one physician says that violation is necessary and another says that it is not, the Sabbath should be violated for the mere possibility of danger to human life overrides the Sabbath" (The Laws of the Sabbath: Chapter II).

Ask why should the Rabbi be implicated in these rulings? Maimonides goes on to say, "And if these violations of the Sabbath are to be done they should be not left to heathens, to minors, to slaves or women lest these should come to regard Sabbath observance as a trivial matter. If you violate the Sabbath it should be done by adults and scholarly Israelites. And it is forbidden to delay such violation of the Sabbath for the sake of a person who is dangerously ill. For the Bible tells us (Leviticus 18:5) which if a man do he shall live by them. He shall live by them and not die by them. Hence, you learn that the laws of the Torah are not cruel or vengeful to the world but are a source of compassion, loving kindness and peace." There are fundamentalists, and Maimonides may be referring to the Sadducees and the Karaites, who assert that this permissiveness is a violation of the Sabbath and therefore to be prohibited. Maimonides responds to obedience to such a literal reading of the Torah, with a quotation from Ezekiel 20:25 – "Wherefore I gave them also statutes that were not good and ordinances whereby they should not live."

Micah's question to us is not to be denied. What is required of us? What is demanded of me and of every Jew is to protect the hounded, the persecuted, the humiliated, the ostracized, the pariahs created by human beings and not by God? What is required of us is to accept the dignity of each individual, to know the heart of the stranger, to make them feel as home with us and to encourage them to live out their own lives with dignity and within a compassionate community?

The Lord God formed the human being of the dust of the ground and breathed into his nostrils the breath of life and the human being became a living soul." Every human being is created in God's image. To make the innocent afraid, to make the human being cry, to force a human being to hide from his own flesh, to humiliate God's creation, is to spit in God's face. We are taught by the rabbis that to shame God's creation is to shed his blood. That shaming is an abomination which we can cleanse from our midst.  

Our sages have taught us: "Better a man cast himself in a fiery furnace than that he put his fellow to shame in public" (T. Berachot 43b).

We read in Deuteronomy 23:2 that the eunuch shall not enter into the assembly of the Lord. But the prophetic conscience would not be stilled. "Let not the alien say who has attached himself to the Lord, 'The Lord will keep me apart from his people'; and let not the eunuch say 'I am a withered tree.'"

For thus saith the Lord, "As for the eunuchs who keep My Sabbaths, who have chosen what I desire and hold fast My covenant, I will give them in My house and within My walls, a monument and a name. Better than sons and daughters, I will give them an everlasting name which shall not perish" (Isaiah 56).

The prophetic conscience resonates in our hearts and minds. Open the gates for the pariahs, gather together the dispersed and despised. "I will gather still more to those already gathered."

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