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Barry Lef

 

Re'eh 5762

 

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Deuteronomy 14:3: You shall not eat any abomination.

This week's Torah portion contains the laws of kosher and an admonition not to eat "any abomination," which is anything that is not kosher.  This week I will talk about something else the Torah calls an abomination: homosexuality.

Gay Marriage has been on the front page of the newspapers this week.  On July 12th Ontario Divisional Court ruled that not allowing gays to marry was a violation of the Charter of Rights and Freedom. They ordered that the current policy limiting marriage to a man and a woman be changed.  This week the Federal government announced that they will appeal this decision.  This is a very controversial issue in Canada.  A poll showed that 48 percent of Canadians favor allowing gay marriage, and 43 percent are opposed. 

It is also very controversial in religious circles: in June the Vancouver diocese of the Anglican church voted to allow blessings of same sex unions, and almost immediately 13 Anglican bishops from around the country said it was a terrible decision and could split the church. The Orthodox Jewish community is opposed to gay marriage and gay clergy. The Reform have accepted both; they have been ordaining gay rabbis since 1990, and they endorsed same sex unions in 1996. 

I don't want to start out with alienating half of the congregation on my first Shabbat (apparently it doesn't matter which
side I take!), but I think it is appropriate for you to know that the Conservative movement is also struggling with this issue, and you should know what Jewish law  has to say on the subject.  The basic prohibition against male homosexuality is found in the Torah, in the book of Leviticus:

Leviticus 18:22 And you shall not lie with a man, as with a woman; it is abomination.  20:13 And if a man also lies with men, as he lies with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be upon them.

The Torah seems to be condemning at least male homosexuality, in very clear language.  However, my sermon is not over yet.the situation is not that simple. By the time the rabbis were compiling the Talmud -- about 1500
years ago -- male homosexuality was clearly taboo as a matter of social practice. But when the rabbis, always scrupulous in their analysis of Torah, turned their attention to this verse, they were troubled by the words "as with a woman."  With their tremendous attention to detail, the rabbis concluded that the only man a man could lie with "as with a woman" would be a hermaphrodite, someone who has both male and female sexual equipment. So how did the rabbis explain why male homosexuality was prohibited in their culture, if this verse only prohibited sex with hermaphrodites?  They needed some kind of "hook" to show how normal male homosexuality is prohibited.

The rabbis have at their disposal a variety of exegetical techniques. One of them is a principle that the Torah does not waste words or even letters: everything in the Torah is there to teach us something.   They found their hook in the tiny letter "vav," which means "and."  The verse starts ""v'et zakhar lo tishkav mish'k'vay esha" which means "AND you shall not lie with a man as with a woman."  The "and" might seem extraneous -- a literary frill.  But to the rabbis, nothing in Torah was without inherent meaning.  So they pointed to that "and" and said that it was there to include relations with ordinary men in the prohibition. You might wonder how they made such a leap based on a single letter, and also why they even bothered to go through this exercise.  Wouldn't it have gotten them to the same place if they just took the language of the Torah at what we would call "face value"? But the fact that they DID go through this process -- on this issue as on so many others -- gives us license to also give the words of the Torah a fresh look. Since the rabbis decided male homosexuality was banned as a result of
rabbinic interpretation, we can also apply rabbinic interpretation to the verse.

Lesbianism is nowhere addressed in the Torah at all.  The rabbis of the Talmud determined that it was prohibited because it was a practice of the Egyptians.  The rabbis considered it lewd and improper -- i.e., it offended their sensibilities, and they ruled that a woman who practiced lesbianism should be whipped. However, Rambam recognized that such a woman was not being whipped for violating a commandment of the Torah, but for violating a prohibition of the rabbis.

  
The Conservative movement has not yet taken on the homosexuality issue in definitive way.  The movement has issued a statement that homosexuals are not to be prejudiced against in synagogue life, and should be welcomed into our communities.  There are those that would say, "how can you allow someone who is flagrantly violating a commandment, who is doing something the Torah calls an abomination, to have honors and serve in leadership positions?" The answer to that is pretty simple: as we see from this week's Torah portion, eating non-kosher meat is also called an "abomination."  If we start not allowing anyone who does not scrupulously follow all the commandments to participate, we will have a hard time getting a minyan together. 

On the gay marriage issue, the movement as a whole has not really taken a position.  The Committee on Jewish Law and Standards, the body that decides on halakhic issues for the movement issued a "consensus document" after two years of debate in the late 1989-1991 that said Conservative rabbis should not perform gay commitment ceremonies, but as a pluralistic movement it is left up to individual rabbis to decide what they want to do.  There are some Conservative rabbis who will perform commitment ceremonies for gays and lesbians; there are many who will not. At present the Conservative movement will not ordain openly gay clergy.  Someone who is homosexual will not be admitted to one of the movement's rabbinical schools, and if a student comes out while in school, he or she will be thrown out of the program.  In practice there
is a "don't ask, don't tell" policy in the seminaries.  Several students have gone through rabbinical school in the closet and revealed their sexual orientation after ordination.  There are many rabbis and rabbinical students who think this policy should change, and there are many who are opposed to changing the status quo.  To allow gay commitment ceremonies, or to ordain gay clergy, would require a change in halakha, in Jewish law, so that these activities are no longer considered a violation.  I think it is helpful in considering this question to divide the matter into three sub-questions:

1) do today's rabbis have the power to change Jewish law in this way;

2) if the rabbis DO have the power, SHOULD the law be changed; and

3) if the rabbis do have the power to change the law, and the law should be changed, should it be changed now?

Whether or not the rabbis have the power to change the law is a technical question.  The answer is that rabbis clearly DO have the power to change the law, although there are technical questions regarding what would be the appropriate technique to use.  We have many things in Jewish law that run contrary to a simple reading of the Torah. According to the Torah, we endorse lex talionis (an eye for eye), slavery, and polygamy, all of which have been banned by the rabbis.  The Torah requires the use of tekhelet -- a blue strand in your talit (as we recite in the third paragraph of the Shema); take a look at your tallit, you will notice that this law has also been overruled.

 

There are a couple of different mechanisms that the rabbis can use to change the law.  One route is to show that the laws prohibiting homosexuality are of rabbinic origin, not Torah origin.  This is where Conservative Judaism differs from Orthodox Judaism; the Orthodox are much more reluctant to change rabbinic ordinances.  The Orthodox position is guided by the principles of following the most recent authorities, and not removing a decree unless you have a court that is greater in wisdom and number than the one that put the decree in place, which our courts of today are not.  The Conservative movement is more
guided by the principle that a judge must go after what is before his eyes, and if the decree of an earlier generation does not fit our generation, we should adjust the law.

By relying on the text in the Talmud which states that what the Torah forbids explicitly is sex with a hermaphrodite, we could argue that the prohibition against ordinary homosexuality is a rabbinic ordinance, and we may change it.  This might still leave hermaphrodites out in the cold, but as my teacher Rabbi Brad Artson said, "I could live with that."

Even if we conclude that the Torah does forbid ordinary homosexuality, the rabbis still have the power to change the law.  It is
not often used, but there is something called a "takanah," literally a "repair," which gives the rabbis power to legislate regardless of what it says in the Torah.  It was the Takanah of Rabbeinu Gershom over a thousand years ago that banned polygamy.  In more recent times, the chief rabbinate of Israel used a takanah to change the laws of inheritance, again directly against what it says in the Torah, to make them egalitarian. However, even if today's rabbis have the power to change the laws, they should not be changed without deep and compelling reasons.  Do such reasons exist in this case?

 

However, just because rabbis have the power to change the law, it does not mean that the law should necessarily be changed.  After all, doesn't the current status quo banning gays and lesbians from enjoying the benefits of marriage support family values which most religions claim to favor?  Are gays and lesbians appropriate role models for our children?  Aren't the laws of marriage there primarily designed to protect children, which will not happen in a gay marriage?  Why should we change thousands of years of tradition? Jewish law has always held that science and halakha should not be in conflict.  When we learn something scientifically, we apply that knowledge to our understanding of Jewish law.  We do NOT ignore the facts in favor of tradition.  For example, the Talmud defines death as the cessation of breathing and heartbeat; that was what their scientific
knowledge taught them.  Today, halakha accepts brain death as death, even in the Orthodox world, which opens the path to organ donations -- even when a person's heart is still beating.  Halakha adopted to our improved understanding, based on science, of how the world works.

The evidence is pretty compelling that homosexuality is not a matter of choice.  A man doesn't wake up one morning and decide that he prefers other men.  That's simply not how it works.  Homosexuals have the same kind of attraction to others of their own gender that heterosexuals feel toward the opposite sex.  Whether it is genetic or environmental is really not that important: it is not a matter of choice. 

In the film Trembling Before G-d, a documentary about the struggles of gay Orthodox Jews, one of the men in the film relates how he tried to become straight.  Following the advice of a psychologist, he put a rubber band on his wrist, to give himself a negative association whenever he saw a man he was attracted to.  He said all it did was give him a sore wrist.  Studies have shown that children brought up in homosexual households are no likelier to be gay themselves than other children, lending support to the concept that being gay is something genetic, not something determined by choice or even environment. If sexual orientation is not a matter of simple preference, many feel that this is a strong reason to change the law.  As Rabbi Elliott Dorff, one of the leading theologians and halakhists of the Conservative movement said, "the God I believe in is not so cruel as to create people who can never have legitimate sex in their lives."

Jewish law has also evolved, admittedly slowly, in response to changes in the society around us.  When slavery was common, we permitted slavery, albeit with some restrictions.  When polygamy was common, we allowed polygamy.  When polygamy became something not practiced by the people around us, we banned polygamy.  When women had a very limited role in society at large, they had a limited role in Jewish ritual life. Now that the role of women in society has changed, the role of women in Judaism has changed-even in Orthodox circles, where even though they may not have many women rabbis, they do have women acting as advocates in religious courts, women teaching Torah, etc.

Judaism should not respond to every passing social fashion. That is why it is appropriate that the changes we make come somewhat slowly, and only after careful consideration.  The social change surrounding gay marriage is very big indeed.
Rabbi Brad Artson, the dean of the Ziegler School of Rabbinic Studies at the University of Judaism, pointed out that homosexual relationships of today are much different than the homosexual relationships of the Biblical era.  Rabbi Artson wrote a Jewish legal opinion, a teshuva, supporting gay commitment ceremonies back in 1989.  In his teshuva, he wrote that in the Biblical era homosexual relationships were of three types -- cultic, oppressive or licentious -- and that is why Leviticus condemned them. Today, he said, Judaism should judge homosexual relationships just as it does heterosexual relationships, and approve those that are loving and monogamous.  What is an "abomination" to the Torah is promiscuous sex, licentious sex, sex used as a way to show force over someone else: things that were associated with homosexuality 3000 years ago.  Those kinds of relationships are abominations regardless of the gender of the people involved.  Kind, loving relationships are not an abomination. 

There are those who would argue that "family values" is an argument against gay marriage.  I would ask, what supports family values better: telling gays they cannot have a publicly sanctioned monogamous relationship?  Or to encourage them to have one partner, and form a loving family? Which brings us to the third question I put out at the beginning of this exploration: even if we should change the halakha, is now the time to do it?  After watching a screening of Trembling Before God, Rabbi Ismar Schorsch, the Chancellor of the Jewish Theological Seminary was asked why can't such obviously committed and dedicated Jews be ordained as rabbis?  He responded that he had two reasons.   "One is practical: There is no doubt that such a step would fracture the movement, and in a very severe way. If you want to see the end of the Conservative movement, that's the step to take now," he says.  The other reason, Rabbi Schorsch said, is "theoretical." It would require a major break from Halakha, or Jewish law, as understood for many centuries. "For me, personally, it raises the question of whether you can be
politically liberal and religiously conservative," he says. "You will find many Conservative Jews supporting domestic partnership and gay rights, but the movement is different."

Schorsch acknowledged that a majority of students at JTS favored ordaining gays and lesbians, and I believe that is also true at UJ.  One could assume therefore that it is only a matter of time before the movement's position changes: when the next generation of leadership takes over, the halakha will change.  In the meanwhile, I feel we would be continuing a wrong in not allowing gays and lesbians to enjoy the benefits, and accept the responsibilities, of a publicly sanctioned life long relationship.  And we would be missing out on the contributions that committed Jewish gays and lesbians could make to our communities if
we continue to deny them ordination.

 

The Conservative movement prides itself on being pluralistic -- allowing individual rabbis to decide questions of halakha for their own congregations.    In this case, I feel that Rabbis who do not want to do commitment ceremonies should not be forced to do them, but at the same time rabbis who do choose to perform commitment ceremonies should not be made to feel they are going against the movement.  Congregations that do not want to hire gay or lesbian rabbis are not forced to hire them, but
congregations that would welcome them should be given the choice and opportunity to do so. 

Watching the film Trembling Before God, and seeing the struggles that the Jews in the film were going through trying to reconcile their God-given sexuality with their love of their religion and their people, convinced me that it is wrong to wait in making these changes.  The film will be coming to Vancouver in the next few months, and hopefully we will be able to arrange a special screening.  I encourage you to see it.

 

Shabbat Shalom

Rabbi Barry Leff

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