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A Teshuva on Homosexuality
By Robert Kaiser

In Leviticus 18:22, the Torah prohibits male homosexual sex, and labels this practice as a to'evah 'abominable'. Rabbinic Judaism, however, is *not* based on a direct reading of the Written Torah as such, but rather on the elucidation of the Written Torah through the information contained in the Oral Torah - The Midrash, Mishna and Talmud. In the Oral Torah we learn that the halakha (Jewish law) strictly prohibits all forms of male homosexual sex; although female homosexual sex is technically allowed, it is severely looked down upon as immodest and licentious. In the end, some authorities reluctantly allow lesbianism, others disallow it. Most people think of all humans as being either absolutely male or female, but technically speaking, this is not true. For all of recorded human history people have been aware that there are borderline cases that blur the distinctions between the sexes. The Talmud discusses the cases of people born with various genital sexual ambiguities, and it recognizes that such people are not simply male or female. The Talmud's practical way of dealing with this is to define parameters on how to best choose a sex for the person so that they can grow up and have a life as close to normal as possible; the Talmud recognizes that any such assignment of sex is practical, and plainly understands that in some cases sexuality is simply not as simple as being entirely male or entirely female.

In recent decades scientists have discovered that in addition to obvious physical variations, there are different sexes based on one's sex chromosomes. Men are defined as having XY sex chromosomes and women as having XX sex chromosomes, but other sexes do exist, such as XXY, XYY, and XO. In addition to these classes, if there is any number of different variations within the TDF gene on the Y chromosome, a person who is genetically male can grow up to be a perfectly formed (although infertile) female. It is obvious that the sexual differences due to genetic variations do not only affect the formation of genitals; They also include the development of the brain and sexual identity. Although most people are either male or female, it is indisputable that many people actually fall into one of the more subtle categories that exist between the two sexes.

Studies have shown that most homosexuals do not choose their sexual orientation; they are born with it in exactly the same way that heterosexuals are. In fact, most homosexuals generally have intimations of their orientation early in their childhood, and often do everything in their power to convince themselves otherwise so as to avoid the stigma and prejudice which society inflicts on homosexuals. Although it is true that many studies have shown that young victims of sexual abuse do grow up to have sexually confused identities, these findings should not be exagerrated. These exceptions should not be the basis for a general rule.

As Rabbi Elliot notes in his teshuva on homosexuality, when a person who breaks a mitzvah is under an overwhelming compulsion, the halakha instructs us that the penalty for violating that mitzvah is considered null and void. Rabbi Dorff writes "Since legal demands or prohibitions only make logical sense if the people being commanded can fulfil them, and since the Torah and Jewish tradition clearly assumed the homosexual's ability to choose to be heterosexual,...homosexuality should no longer be considered an abomination, for that implies that the person could choose to do otherwise."

Along these lines, the CCAR [Reform] Responsa On Homosexual Marriage (5756.8) reads:

The rule is ones rachmana petarei, "one is legally exempt for acts committed under duress"; see BT Bava Kama 28a and parallels. A problem with this analysis is that gilui arayot, the commission of acts of intercourse forbidden in Lev. 18 and 20, is normally prohibited even on pain of death; BT Sanh. 74a. Moreover, ones in sexual cases applies only to the female or passive "partner;" the male or active "partner" by definition is said to perform intercourse with intention; see BT Yevamot 53b and Yad, and Isurey Bi'ah 1:9. However, see Yad, Yesodey Hatorah 5:4: when a person commits any act, including gilui arayot, under duress, he or she does not suffer the Torah's prescribed punishment. Moreover, there are times when human nature "compels one to desire" an otherwise forbidden thing and thus mitigates the act from the law's point of view (Yad, Isurey Bi'ah 1:9). This can be said to apply to our case, where homosexual behavior results from an orientation which, whatever its cause, is beyond the control of the will of the individual.

Within the Orthodox community, most rabbis still rail against homosexuality because they refuse to believe that homosexuality is innate; Many still claim that gay people "choose" to become gay.

We are now forced to ask ourselves just what the rabbis of the Talmud would say if there were to have this information available to them. We do know that the Talmud teaches us that we must accept the fact that all people are not strictly male or female in all aspects; Conversely it can be said that we are then forbidden to classify all people as such. Combining our knowledge of Talmud with clear scientific observation forces us to conclude that the Torah's prohibition against male sexuality should only be applied to people who meet the following criteria:

(1)They must have exactly one X and one Y chromosome.

(2)The TDF gene on the Y chromosome must not cause any observable morphological or _psychological_ differences from heterosexual males.

(3)Any other sex related genes also must not cause any observable significant morphological or psychological differences.

There seems to be one logical conclusion: If we are serious about being Torah Jews, and view the Written and Oral Law as in some way representing the will of God, then within the framework of Jewish law we discover that many such people are actually not halakhically male. For such people, none of the Torah prohibitions can apply.

The converse is also true: Those people who do attempt to apply the prohibitions in Leviticus to innate homosexuals (who meet the above criteria) may themselves then in violation of Jewish law; they are incorrectly applying laws to people whom the Oral prohibits us from applying them to!

None of this is to mean that prohibition is no longer valid. The above argument is not a legal fiction. Far from it. In fact, I certainly recognize that not all people who identify as homosexual are inherently gay. Some people are indeed bisexual; these people do have a choice in whether they want to be with a man or a woman. For all such cases, the prohibition against homosexuality is valid and binding. However, the revolutionary idea presented here is that Jews who take the Written and Oral Torah seriously are indeed forbidden from applying this law to any homosexual person who is inherently gay by nature. The ramifications of such an understanding are enormous.

(1) Rabbinical seminaries should allow innate homosexuals to obtain smicha (rabbinical ordination).

(2) The traditional view is that God created man in his own image, and yet the text of the Written Torah implies that God considers many of his own creations as abominations. This self contradiction is violently at odds with both our ethical and moral impulses, and also with our understanding of God as the source of all good and love in the universe. This new, and I maintain halakhically justifiable view, rescues us from this paradox. We maintain halakhic integrity and yet we also learn that God's love applies to homosexuals as well as to heterosexuals.

(3) Some homosexual behavior is still prohibited. Those people who are practicing homosexual sex due to any reason other than that which is biologically defined are actually the ones that the Torah (both Written and Oral) is referring to. In such cases, we must inform such people that their behavior is thus against halakha. As such, they cannot be accepted as rabbis, cantors, or leaders within the Conservative movement, anymore than we can accept people who do not keep kosher or the Sabbath.

Bisexual people may complain that this is a discriminatory behavior, for it asks them to limit the people that they can have sexual relations with. The Jewish response should be to point out that such limits are an integral part of Judaism; indeed Jewish law requires that all Jews refrain from romantic relations with gentiles. Another response might be to say "But what if I happen to meet someone of the same sex that I fall in love with? After all, I cannot control my emotions". It should be pointed out that exactly the same thing might be asked by a Jew who falls in love with a gentile of the opposite sex.

I feel compelled to remark that I did not come to these conclusions lightly, or as a result of deliberately trying to find a way to allowhomosexuals to become rabbis. Indeed, for many years I looked upon such ideas as outside the bounds of legitimate Jewish thought. However, as I began to learn more both about Jewish law and about human physiology, it became more and more clear to me that the traditional Jewish view on homosexuality was both halakhically as well as scientifically indefensible.

This understanding lacks the attractive black and white features that so many people desire. Politically correct advocates view the ever changing whims of society as the highest possible source of ethics, and constantly demand that all other people change their views to fit the latest intellectual fad. On the other side we find religious people who have let their prejudices constrain them and refuse to consider new scientific evidence. Many such people do not understand the flexible nature of halakhic decisions making, and sometimes even commit the sin of hatred of the other.

The view I present here satisfies people in neither group, nor are they meant to. It is simply meant to be a logical argument based on Jewish ethics, Jewish law, and biological fact. Those with an open mind will at least consider it with the full power of their intellect; those with closed minds will probabaly dismiss it outright despite any merits it may have.

One practical problem with implementing this analysis is that people may ask "How can we reliably tell who is innately gay?". I posit that since absolute and unarguable knowledge about these issues is unlikely to exist in the near future, we do what the Jewish community has always done when faced with any halakhic difficulties: We establish a protocol and simply do the best that we can.

Shalom,

Robert Kaiser

Graduate Research Assistant
Dept. Of Physiology & Biophysics
SUNY at Stony Brook
kaiser@biosys.net
Note: GayJews.Org does not endorse this teshuva or any other non-orthodox teshuvot per se. We provide it as a public service only.


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