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What options are available for two Jewish gay men to have a physical relationship?
By: Kevin J. Sanders

The Question:

What, if anything, might be permitted to allow homosexual Jews to give physical expression to their feelings?

While on occasion counseling has been known to allow a person to live in a heterosexual lifestyle, all of us are all too aware of too many stories of people who thought they would be "cured" and when things didn't work out, they took their own lives or became completely secular. Still others ruined the lives of their spouses and children because they thought that marriage would help them stop feeling what they felt.

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.

Therefore, the question arises, what can be done? What if anything does the Torah permit to the homosexual Jew, who will likely have severe trauma from even trying to change?


Before I begin, I wish to make something very clear. This is intended to be a svora l'halacha, and *NOT* a psak din. For those unfamiliar with the difference, a psak states this is the halacha (the law) and this is what you are allowed to do or not do. A svora on the other hand is strictly providing a possible way of looking at an issue. It is not intended to tell people this is definitely the law only that this may be a possible way to understand the law. Therefore, even though I am making this publicly available, I would ask everyone who reads it to please, please, please, as much as possible look into the sources yourself and decide if this makes sense, do *NOT* simply take what I am saying on face value.

Problems L'Halacha:

Before discussing possible ways of permitting certain acts, it is important for us to understand which prohibitions are involved.

Most of us are familiar with the famous verse from Leviticus 18:22: "A male shall not lie with a male as with a woman. It is an abomination." This is brought in the Talmud in Sanhedrin 54:B. While the prohibition is fairly clear, it would seem from the Talmud and the description in Sefer Hachinuch to apply specifically to anal sex. While it does apply to the passive and active participant, it does not seem to apply to women.

The question then arises however, what the Torah view is regarding oral sex and mutual masturbation, as well as hugging and kissing and the like. To the best of my knowledge, there would appear to five prohibitions involved here.

1. The first and best known prohibition involved here is Shikvat Zera (spilling seed). This is brought in the Shulchan Aruch in Hilchot Nida (Nidah is a form of spiritual imbalance after a woman's period), Ibn Haezer 23:1. The Shulchan Aruch views this is as being a very serious prohibition. However, many of the commentators argue on the seriousness of the prohibition and cite the Sefer Hachasidim which seems to imply that while this is a very serious prohibition, it would be worse for a heterosexual man to have relations with his wife while she is still in Nida. The prohibition is based on the Talmud in Nidah 13:B and is further based on a verse in Genesis 38:9-10: "And Onan knew that the seed would not be his; and it came to pass, when he went into his brother's wife, that he spilled it on the ground, lest he should give seed to his brother. And the thing which he did displeased the Lord and he slew him." This again, applies only to men and not women.

2. Another prohibition involved is Lifnei Iver Lo Titen Michshal (Before the blind, do not put a stumbling block) which is brought in the Shulchan Aruch in Hilchot Ribit (Lending) in Yoreh Deah 160:1. This prohibition in addition to it's literal interpretation, also is an injunction against causing a fellow Jew to transgress a prohibition. While the case brought there specifically deals with the biblical injunction not to loan money for interest, this would seem to apply to any case where two people are involved in a prohibition. The one who is causing the seed to be spilled and the one that is having his seed spilled. The prohibition is based on the Talmud in Bava Metziah 75:B and is further based on the verse in Leviticus 19:14: "Before the blind do not put a stumbling block."

3. In addition, there would appear to be a possibility of a prohibition involving kissing and hugging. This prohibition is not brought in the Shulchan Aruch or Rambam but rather is based on the verse in Leviticus 18:6: "None of you shall approach anyone near of kin to him, to uncover nakedness." This does not literally mean to uncover nakedness but is rather explained in the Chofetz Chaim's Sefer Hamitzvot Hakitzur and the Sefer Hachinuch as specifically referring to hugging and kissing and the like between a man and a woman, which will lead you to possibly commit one of the Giloi Arayot (litterally, uncover nakedness, this refers to all types of specifically forbidden sexual encounters). While there is not a specific mention of same sex hugging and kissing, the Sefer Hachinuch does quote the Talmud in Kiddushin 81:B and Avot 3:13 to show that even though certain things may have been permitted, a person must take on additional stringencies to keep himself from coming to do a giloi arayot prohibition.

4. Another possible prohibition is based on a verse in Numbers 15:39: "and that you seek not after your own heart and your eyes, after which you go astray." The Sefer Hamitzvot Hakitzur and the Sefer Hachinuch both understand this to mean thinking about doing a forbidden thing is forbidden. The Talmud also deals with this prohibition in Brachot 12:B. Engaging in any of the actions discussed here could lead you to think of other forbidden actions.

5. I have seen some reference to a possible prohibition against touching your ever (literally a limb, a common euphemism referring to the sex organs). However, I have not found a source for this and it is likely based on a Takanat D'rabanan (Rabbinical proclamation).

The svora:

Now, all this having been said, there is a very clear precedent in the halacha for allowing the transgression of certain prohibitions under certain conditions. The prohibitions listed above (with the exception of anal sex) would all seem to be among these prohibitions which can be waved for the right reasons.

Rambam in Hilchot Shabbat (Sabbath) 2:3-4 brings the following verse in Leviticus 18:5: "You shall therefore keep my statutes, and my judgements; which if a man shall do he shall live in them." He uses the word to live by them to mean to live by them and not die by them. Therefore, he is quite clear that in the case where a person is ill and his life is in danger, or even if the person is healthy but if he does not violate a law of the Torah he will become dangerously ill, he is permitted and it is even a mitzvah (commandment) to violate the Torah commandments.

Again, there is a clear precedent in the halacha for understanding a person to be dangerously ill not only when he is physically ill, but also when a person is under mental anguish.

Among the cases where this is the case:

In Hilchot Ibur (pregnancy), Rav Elyashiv, the Sheelat Yaavetz, the Torat Chesed and the Even Haezer permitted an abortion within 40 days of conception for a woman who was suicidal over having a child. The Tzitz Eliezer permitted abortions up to the 7th month for similar reasons and in cases where the baby is going to be severely deformed or will die soon after birth. All this is based of course, on the mental anguish of the mother.

The reasoning of the poskim (rabbinic authorities) who permit before 40 days is also relevant to our case, since the reasoning is that until that time, the Talmud considers the fetus as "mere waters" and therefore the only prohibition involved is shikvat zera (spilling seed) as opposed to murder. The Tzitz Eliezer brings a different proof to allow abortions up to 7 months, however this is not relevant to our case.

In Hilchot Shabbat, Rav Noivert is his Shmirat Shabbat K'hilchita brings the case of a person who is in the hospital and is seriously ill. Were he to demand hot kosher food and it was not available in the hospital, his mental anguish would be enough to allow another Jew to drive to wherever the nearest place is that kosher food could be procured, drive back with it and heat it up, even though he is desecrating the Sabbath.

Also in Hilchot Shabbat, the Tzitz Eliezer and the Chelkat Yaackov allow the desecration of the Sabbath for the purposes of saving someone who is suicidal.

In the case of someone who is dying, many poskim permit such a person to forego treatments which may extend his life somewhat because of mental anguish of the patient and the family.

While all these cases seem to imply that mental anguish would be enough to permit transgression of a Torah commandment based on the concept of someone in mental anguish being considered someone equivalent to those whom are dangerously ill, the question arises if this is allowed because of a one-time dispensation or in theory, could mental anguish be enough to permit regular violations of Torah law?

The fact is that the Torah and halacha do not deal with letting a person off with a warning "this time" or letting you get away with this "just this once." Were someone to need to violate a Torah law on a regular basis to save life, this would also be permitted again and again. If it is not permitted, we do not allow you to "get away with it" even once. Numerous precedents for this are available:

In Hilchot Shabbat, Rav Noivert and the Tzitz Eliezer specifically permit someone who is diabetic and insulin dependent to regularly violate the Sabbath in order to puncture the skin and a vein to inject the insulin. Along the same vein, these poskim permit someone with a heart condition to carry nitroglycerin tablets with them on the Sabbath, in violation of the Torah and Rabbinic prohibitions against carrying on the Sabbath.

While not directly relating to the case of one who is dangerously ill, the case of Jews in Arabic countries in the middle ages is most enlightening to our situation here:

Rambam, in his Iggeret Hashmad and Iggeret Teiman permitted Jews in Arabic countries to outwardly adopt Islam as their religion while inwardly remaining faithful Jews. This occurred in countries where fanatical rulers had risen to power who insisted that all people in their borders must convert, leave, or be executed.

While theoretically it was possible for them to look for other countries to move to, the fact is this was not really practical for most. Besides the fact that the journeys could be arduous and long, there were not many areas where Jews were free to remain Jews and most places were rife with anti-Semitism.

This left the majority of Jews in these countries with the unenviable choice of converting completely to Islam or accepting martyrdom. Rabbi Berel Wein in his book of Jewish history explains that many Jews asked one of the rabbis of the time if it would be permitted to convert outwardly to Islam while remaining Jewish in private. He had told them no, and they should prepare for martyrdom. Rabbi Wein relates that many Jews cracked after this and converted to Islam completely, while others preparing to be martyrs cracked under the tremendous emotional strain. Into this melee, Rambam injected himself and offered proofs that it would be permissible to convert outwardly to Islam while retaining as many as possible of the Jewish laws as the people could.

Another case which is quite similar is that of the Jews in Egypt. According to legend, Rambam used to sign all his letters, Moshe Ben Maimon who transgresses three negative commandments in the Torah every day of his life. This is based on the biblical injunction against returning to Egypt. Again, while theoretically the Jews of Egypt could have moved elsewhere, because of the mental anguish of such a possible move, they were permitted to stay where they were.

It would seem clear then, based on the halacha, that there would be room to provide certain leniency for homosexual Jews to have some form of physical expression of their feelings. Nor would it seem that it is necessary to try to spend years going through therapy or to try to get married. I certainly would not advocate simply accepting on faith that someone is homosexual. After a competent therapist has been consulted and it has been determined that this person is indeed homosexual, it would seem that conversion therapy or marriage would not be called for and would actually be prohibited.

If therapy were largely effective, the situation might be different. However, even by the most optimistic numbers, the number of cases where someone naturally homosexual can function normally in a heterosexual relationship is small.

Further, all too many times, such therapy causes serious mental and emotional damage to people undergoing them. As was said above, there are numerous times when the person involved "cracks" completely and becomes (Chas Veshalom) completely secular or commits suicide.

While there is precedent in halacha for attempting treatments which may pose risks to life if the chances are good that they will work and the risks to the life of the patient are minimal, in this case, it is the opposite. The chance of such treatments succeeding is exceedingly small and the chance of causing serious damage to the person as well as to his family, should he try getting married are fairly good. At best in most cases, this has been proven to be ineffective.

After this is settled however, a new question arises:

Does this mean you can engage in oral sex, masturbation, etc. whenever you like? It would seem clear from what Rambam explains in Hilchot Shabbat (see above) and the case of the Insulin user and nitroglycerin user that we would not have to already be severely emotionally depressed to allow us to transgress these prohibitions. Rather, the possibility must simply exist that the strain will eventually tear us apart.

Like the case of the medicine, this would seem to be something permissible to transgress only as often as is needed to keep feelings of severe depression at bay. It may be that for some people being celibate all their lives would not cause them to feel this tremendous depression while for others it may be that only once a year is required while for still others, it could theoretically be that several times a day is required. I cannot suggest a specific time period to wait, and this would seem to be something one would need to discuss with a competent therapist to see if you really are homosexual and cannot change and how often you would need to be allowed to engage in these acts in order to feel normal.

If I may suggest a possibility to be explored however, since heterosexual couples have a built in period each month of roughly two weeks per month when they are not permitted to engage in relations (the Nidah period), this may be applicable to our case as well. Certainly the average homosexual individual would not have more of a sex drive than the average heterosexual and so therefore, this would seem to be a possibility for a reasonable compromise (i.e. one week on, and one week off). This would also likely contribute greatly to the stability of a homosexual relationship between two men. One thing that is always stressed with regard to the Nidah period is that it forces the couple to learn to communicate feelings of love and other emotion in a verbal form which allows for greater communication and hence stability in the relationship. However, again, this should probably be discussed with a therapist.

With regards to anal sex, as I mentioned earlier, this prohibition cannot be waved even to save a person's life and transgressing it still constitutes an aveira (sin). However, Rabbi David Bleich of Yeshiva University does explain that one who cannot control his actions is considered an onus (the equivalent of circumstances beyond your control) and is not liable for what he has done. However, he adds that most people can control their desires and this should not be looked on as anything other than if this happened once and you were overwhelmed you would not be liable. If however, giving up anal sex is not an option, we cannot forget that there are 612 more mitzvot in the Torah which we can fulfill and indeed should fulfill.

Allow me at this point to re-iterate one last time a theme I have mentioned throughout. While I have done quite a bit of learning and I have researched this issue as thoroughly as I possibly could, I am not, never was and likely never will be a posek. Ideally, I should not be presenting this based on this reason and based on the reason that I am nogeah bedavar (i.e. I have a vested interest in the outcome). However, the orthodox community has largely ignored the plea from us to be accepted and to allow us some way to be as normal as possible. I had very often considered suicide as the only viable option, since being a frum Jew was too important to me to give it up. When I decided to come out, I realized I had a problem because what I need to be able to do in order to keep from feeling suicidal is forbidden. I have therefore tried; as best as I can; to find a svora of some sort which would allow at least limited expression of my feelings and those of others like me.

I hope and pray that I have presented the Torah view as accurately as possible and that this will prove helpful to others in my situation. However, given that I am not qualified to do this, I would ask anyone reading this to please, please, please look over the sources for yourself and decide for yourself if this makes sense. Don't just accept on face value what I am saying. Also, should you have any additional comments about this, I would welcome them.

I wish you Hatzlocho Raba and Siyata Dishmaya in whatever path you choose.

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