Nu? A Gay Chasunah?

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Written by Sender Rozesz. Sender Rozesz is a practicing attorney with a background in Jewish pluralistic education for adults. Sender Rozesz is Jewrotica’s resident Double Mitzvah columnist. The views reflected in his writing represent his own personal views, and are not intended to reflect the views of any organizations, institutes or associations with whom he may be affiliated.

Rated PG

Let me begin with a disclaimer: I’m not gay.

While I am certainly not homophobic, and might even, on some days, admit to being bicurious, I’m not gay. I say that because, in the words of Ethics of our Fathers, you should never judge your fellow until you have reached his place, or stand in his shoes.

Not that anything that I plan to say is intended to be judgmental in any way. Still, one must be extraordinarily cautious when discussing or opining upon somebody else’s lifestyle and struggles, not to presume to understand challenges that you yourself have never experienced, and never to succumb to the far-too-easy temptation to minimize or dismiss as inconsequential something that looms large in another person’s mind and life. On the other hand, not being as personally invested in the matter that preoccupies one’s fellow may sometimes permit a more objective point of view.

I believe that a candid discussion needs to be had, as we grasp through the churning waters of popular culture for the sturdy and enduring lines of the Torah that have always tethered us and preserved us as a people. If, in reading this, you believe that I have strayed from the above principles of honesty and objectivity, please point it out in the comments, so that my perspective may be enriched by your own.

In the following, let us address – and in some instances, untangle – several things, taking each in turn:

  1. The drive and desire for gay marriage under secular law;
  2. Torah’s approach to homosexuality; and
  3. Torah’s approach to marriage.

Why do homosexuals WANT to get married?

“Marriage is a wonderful institution – I’m just not ready to be institutionalized.”

– A Skeptical Bachelor Somewhere

Some of the reasons that I have heard for the drive for gay marriage involve the legal rights and benefits that are available to married spouses. Yet, it simply cannot be the case that the battle over gay marriage that has ripped through this country is about filing joint tax returns and making end-of-life decisions. Those kinds of mundane matters simply don’t inspire the kind of passion that has been evident in the struggle to legalize gay marriage. The “Love Wins” signs and hash-tags are not about legal rights.

Besides, to the extent that the government extends rights that are only available to “married” couples, a far easier and more sensible solution would simply be for the government to get out of the marriage business. Once upon a time, when children were judged by the “legitimacy” of their parentage, or where law was wedded to moral principles, it was perhaps necessary for the government to define “marriage.” A child born of a “married” couple is legitimate. A spouse commits adultery only if he/she is “married.” In today’s culture, however – and as discussed in greater detail below – these concerns either no longer exist, or are no longer the role of government. So if legal “marriage” is perceived as being unfairly applied, then the best solution would be to retire that term and status from our laws altogether.

But it is not actually the legal consequences of being married that has driven the successful movement to legalize gay marriage. Rather, the quest for marital status has been, more than anything else, symbolic. Marriage – in its most romantic sense – is the step that heterosexual couples have taken for millennia that formalizes their love for each other. It is what a couple does when they announce that they no longer wish there to be any doubt as to the duration of their relationship, and that they are ready to commit to each other for all time. Marriage is thus the ultimate legitimization of a relationship. Prior to marriage, the relationship may be seen as tentative, uncertain, perhaps even inappropriate. Marriage, however, reflects society’s ultimate stamp of approval; its hechsher, as it were. Possessing that label allows the couple to emerge out of the shadows, into the light, and forces the nature of their relationship into mainstream culture.

Of course, opponents of gay marriage based solely upon traditional notions of morality have much to explain.

Our culture is hardly a bastion of morality. Adultery is mainstream. Bigamy is still illegal, but swinging has been gaining in popularity. Drug use and teen pregnancies are at an all time high, as are the corruption and scandals dogging those in our political offices. And as homosexuals yearn to marry, heterosexual marriage has never been less popular. The idea of “saving oneself for marriage” has now become a foreign and outmoded concept. Often, marriage is avoided simply because it is more convenient to remain single. And for those who do decide to tie the knot, the divorce rate is incredibly high. Divorce has been mainstreamed; an acceptable option for a marriage that has lost its appeal.

So you may morally disapprove of homosexuals, but is it their marriage that is keeping you up at night and endangering your moral code? I doubt it.

On June 26, 2015, the United States Supreme Court decided the landmark case of Obergefell v. Hodges, ruling that the right to marry is guaranteed to all citizens – including homosexuals – by the Fourteenth Amendment of the United States Constitution. Those who like gay marriage celebrated the decision. Those who are against gay marriage mourned the decision. But that’s from a result-oriented standpoint.

From a strictly legal standpoint, constitutional scholars seem to agree that the decision contained very little in the way of legal analysis, and wrested powers that were reserved to the individual States. Nevertheless, that too was inevitable. This decision was certainly not the first to have encroached upon State rights. Health insurance, education, contraception, abortion, and agriculture are several examples of areas that were once understood to be areas in which each individual State could shape its own culture, but which the Federal government has since gobbled up for itself. We simply no longer live in a culture in which the Tenth Amendment has any prominence – but that ship sailed long ago.

Nor is it in any way novel that the United States Supreme Court is unwilling to sustain a State statute that is based upon a moral code. In 2004, the Supreme Court announced in Lawrence v. Texas that the States had no business legislating morality, and struck down as unconstitutional a Texas law that criminalized sodomy, as well as the conviction of the homosexual who was prosecuted under that statute.

And that, too, was no surprise. A secular government, with a deliberate separation of church and state, has no business peddling in morality. For where would it end? And whose moral code would it apply? Would we pick Christian morality? Jewish morality? Islamic morality? Would it be applied consistently? If our laws reflect our moral code, then should we re-institute criminal laws against adultery? Outlaw gambling? Prohibit loaning with interest? Criminalize premarital sex? Should we have laws that compel charity (i.e. taxes for welfare)? Either it is the government’s job to enforce our moral code (and fight over the meaning of “morality”), or it is not, in which case the government should abandon that role altogether.

Thus, despite the moaning of conservatives everywhere, the Supreme Court’s decision was perhaps inevitable.

Of course, as Jews, our responsibilities and standard flow – not from the U.S. government – but from Torah, as does our moral code. In Judaism, there is no separation of church and state. There is no distinction between what is legal and what is moral. There is only what G-d said and what He didn’t say.

And He had stuff to say about both homosexuality and about marriage. Let’s discuss each in turn, as objectively as we might.

Jewish Homosexuality

The Sources

Jewish identifying as homosexuals struggle greatly, as the Torah is fairly unambiguous in its condemnation of male homosexual conduct. There are a couple of sources that address this. One is the basis for the Noahide law against homosexuality. This, Maimonides derives from the verse in Genesis: “Therefore shall a man leave his father and his mother, and cleave to his wife, and they shall become one flesh.” Genesis, 2:24. According to Maimonides, the words instructing a man to “cleave to his wife” are intended to exclude cleaving to another male. See Maimonides, Mishnah Torah, Shoftim, 9:7. The second prohibition against homosexuality is G-d’s command to the Jews in the famous passage in Leviticus: “You shall not lie down with a male, as with a woman: this is an abomination.” Leviticus, 18:22.

As biblical passages go, the latter seems fairly unambiguous in its disapproval of gay sex.

Lesbian sex is treated differently. Biblically, there is no direct prohibition on any sexual activity that females may wish to do with one another. According to many Halachic commentators, lesbianism falls under the category of “the practices of the land of Egypt in which you dwelled” which are forbidden by an early verse in Leviticus. ee Leviticus, 18:3. The Talmud states:

“What was it that the Egyptians did? A man would marry a man, a woman would marry a woman, and one woman would marry two men.” Nevertheless, despite this possible biblical source, Halacha acknowledges that there is no punishment for lesbianism. Moreover, as discussed below, there appears to be substantial room to contextualize the prohibition on emulating the Egyptians.

As Jews, how do we respond to the above biblical prohibitions? As usual, we present a spectrum of opinions and approaches.

The Personal-Choice Jew

Some seem to have a kind of “build-a-bear” relationship with G-d, in which G-d is something that we customize to our preferences. If G-d commands something that we find to be unjust, no biggie – we just cancel that G-d, and create a new G-d that approves of the lifestyle that we prefer. G-d ends up being little more than a collection of our favorite ideals. This is consistent with the modern notion that belief is a personal choice; I choose what to believe, based upon my own philosophical and moral compass. I choose to believe in G-d. I choose to believe that G-d is a fair and magnanimous deity, and not a petty one. I choose to believe that G-d would not command something that I perceive to be unjust. If He did, He didn’t mean it. If He meant it, well, then I don’t believe in that G-d.

The Struggling Jew

Others, however, do not have quite such a cavalier relationship with G-d and belief. They say: I believe that G-d, omnipotent and omniscient, came first. And He created me. And I believe in Him not because it is convenient, or because I agree with Him, but because I really do believe in Him. I believe that He let His will be known to humanity, and I believe that that will is expressed in Torah.

And I believe that Torah forbids gay sex.

Hence the struggle that turns this man’s guts inside-out on a daily basis. The sense of injustice -perhaps even betrayal – is a biggie. How could a just G-d, the G-d that he is commanded to love, and whom he is told loves him, forbid sexual bliss when his only means of achieving it is with another man? Particularly if one accepts the premise that homosexuality is a trait created by G-d, and one that a person has no choice in. This is a struggle only for someone who truly believes in G-d and the eternal relevance of Torah – yet feels rejected and isolated by the Torah’s condemnation of his sexuality.

As an aside, homosexuals do not necessarily have a monopoly on this injustice. In fact, in terms of a biological imperative, it is more likely that a man will be born with a natural aversion to monogamy than a natural aversion to heterosexuality. Such a man’s need for sexual variety might be every bit as powerful and compelling as another man’s need for sex with another male. And forcing one man into monogamy can be every bit as unnatural as forcing another into a heterosexual (or no) relationship. Yes, of course a heterosexual man has at least one outlet, one person with whom he can enjoy a kosher, loving, and intimate sexual relationship, whereas a homosexual man has none. The truth is, however, as discussed a bit later, there is nothing in the Torah that prohibits an intimate relationship between two men – it prohibits only a sexual relationship. That is no way meant to diminish the agony of being unable to consummate one’s love for another through sexual union; however, Torah limits our sexuality in a variety of contexts. Here are a few others:

  1. If a child is born of an adulterous affair, he/she is a mamzer (a bastard), and is forbidden to marry anyone other than another mamzer. Fair? What did the child do?
  2. Two people fall deeply in love, and cannot imagine spending their lives with anyone else. Problem: they are a nephew and aunt. They may never consummate their love. If they were an uncle and niece, they could, but not a nephew and aunt. (Think Moses’s parents.)

In this sense, our grief at the injustice is hardly new. As we discussed here, the entire Israelite nation took to mourning when G-d issued these sexual restrictions, placing severe limits on how we express our love. “And Moses heard the people weeping for their families, each one at the entrance to his tent.” Numbers, 11:10. “Weeping for their families” – “because intermarriage among family members was forbidden to them.” Rashi.

Aren’t these injustices right up there alongside “why do bad things happen to good people”? Or how about the males born to a priestly family with some kind of congenital defect, who are forever precluded from fulfilling their birthright and serving in the Temple, as we discussed here? Since when are we strangers to perceptions of Divine injustice? We’ve never had the kind of relationship with G-d where we say: “Hmmm…this one makes sense to me and seems fair, so You may expect this of us. But this one? Sorry, it seems unfair to me, and so You’re going to need to reconsider, or we’ll have to either cancel the Torah, or fire You as G-d. This simply won’t pass committee.”

There were times throughout our history when not working on Shabbat virtually guaranteed that a man would lose his job and his source of livelihood. Some Jews lost another job every week. Some gave in and elected to work on Shabbat, the fear of being unable to provide for one’s family proving too overwhelming – and who could blame them? But they did not conclude that the laws of Shabbat are unjust, and/or consequently, that either there is no such law or no such G-d.

Reconciling one’s life with G-d’s will, as articulated in the Torah, can be a painful, arduous and lifelong struggle. But as Jews, the Torah is the stationary rock of our foundation, upon and around which we orient ourselves, for better or for worse.

The Rabbinic Jew

There have been, of course, valiant attempts to “contextualize” the Leviticus passage, to suggest that the prohibition is only lying with a man “as with a woman,” in the manner with which women were treated in those days, i.e. subjugated to the male, as argued in Wrestling with G-d and Men by Rabbi Steven Greenberg. Or perhaps or that it is “lying down” that is an issue, but that having sex standing up might be okay (okay, that last one was my own). These attempts to reinterpret verses differently than they have been understood for millennia are noble, in that they recognize the extraordinary pain of gay Jewish men, as they struggle to reconcile their sexual natures and their relationship with G-d. These efforts seek to provide respite – not by rejecting G-d or the Torah, but – by reexamining our earlier understandings of it in light of the need of our suffering brethren.

As virtuous as the attempt is, however, it must also be authentic. It has to be an intellectually-honest undertaking, applying the rules of interpretation that G-d gave Moses, and demonstrating that the Leviticus passage did not mean what it was previously thought to have meant. meant. In the above example from Rabbi Greenberg, the premise of the reinterpretation is that Torah views sex between a man and a woman as one in which a woman is subjugated to the man. Thus, the argument goes, Leviticus prohibits a man lying with another man in that way. However, the premise itself is faulty, as according to Jewish law, a man is obligated to treat his wife with the utmost of respect, and they are largely her sexual needs that govern their relationship. In fact, if the Leviticus passage were to be interpreted in this way, this would be the one and only place in the Torah in which the subjugation of women is condoned. Is that better? Is it right?

And then of course, there are the Noahide laws as articulated by Maimonides. Thus, while the undertaking is noble, this author has not yet become aware of any alternative interpretations of the biblical texts that have survived the gauntlet of rigorous halachic analysis.

On the other hand, there may be more success in contextualizing the Leviticus passage used as a source for the prohibition on lesbianism. The Torah is not shy about prohibiting specific sexual acts; so why would it couch a prohibition solely in terms of avoiding the practices of the Egyptians? Is it possible that a prohibition calculated at distancing the Israelites from the Egyptians had greater relevance to the early generations of Israelites, for whom Egyptian culture still held a powerful influence?

The Resigned Jew

There is, of course, the Jew who may say: “You know what? I believe that G-d forbade this – but I simply cannot resist. I’m sorry, and hope that You will forgive me.” And who can blame him, much less judge him? G-d has not made it easy for us, for any of us. Nobody serves G-d with perfect obedience (at least nobody in my circles), and how callous would it be to judge someone simply because their sins are not my sins?

This is something that seems to have become tangled in the discussion over gay marriage, as people confuse standing by traditional principles of morality and accepting every person with dignity. I may have good reasons to not be able to bless or condone your lifestyle; but what does that have to do with the way I treat you as a person? As a person, no matter what your sexual preferences are, no matter what your color is, no matter what your background is, you are entitled to the utmost respect. Indeed, if I perceive that you have been faced with a difficult choice, between a book and a hard place (pardon the pun), then you also deserve my empathy, since who among us has not shared that very experience?

And here’s a pretty simple litmus test: if you believe that homosexuality is a choice, then treat a homosexual with the same respect that you treat anyone who has made a choice that you don’t approve of. Hopefully, that will be no different than the way you treat yourself, since you almost certainly have made your own fair share of bad choices. And if you believe that homosexuals have had no choice in the matter, then your attitude towards them must surely reflect the great sympathy that you have for a struggle on a scale that you possibly have never had to contend with.

Sex, Not Relationship

Just as the Torah is fairly clear in its condemnation of gay sex, it is equally clear that it is gay male sex that it is condemning, and nothing else. There is nothing prohibited about two men sharing a deep, intimate, and homoerotic relationship. Indeed, based upon the biblical description of the friendship of David and Jonathan, some have speculated that David was gay (or at least bi, since he seems to have had quite a heterosexual lust for Batsheba). There was an abundance of kissing, hugging, and a relationship that endured significant political and familial obstacles. None of this offended Torah’s prohibition; it is the particular act of sex that Torah prohibits, not the relationship.

So, let’s assume that we can get past the prohibition on gay sex. Either I’ll restrain myself, or I’ll do it anyway – but I want to formalize my relationship. What does Torah say about marriage?

Jewish Marriage

Everything that we know about Jewish marriage is derived from a single verse in Deuteronomy, in – of all places – the passage addressing the laws of divorce: “When a man takes a woman and is intimate with her…” Deuteronomy, 24:1. The Hebrew word for “takes” is the same word that means to purchase, or acquire. From here, the sages understood, a man acquires his wife in one of three ways: (1) by giving her money or some object of value; (2) through sex; or (3) by contract.

Maimonides explains this evolution of marriage as follows: “Before the Torah was given, when a man would meet a woman in the marketplace and he and she decided to marry, he would bring her home, conduct relations in private and thus make her his wife. Once the Torah was given, the Jews were commanded that when a man desires to marry a woman, he must acquire her as a wife in the presence of witnesses. Only after this, does she become his wife.” Mishnah Torah, Ishut, 1:1, 3:20-21.

Later customs developed involving the use of a Chupah for the wedding ceremony, the use of a ring with which to acquire the bride and consummate the betrothal, and the officiation of the wedding ceremony by a Rabbi. From a biblical perspective, however, it is necessary only that a man acquire his wife in one of the aforementioned three ways, before witnesses, and that he then bring his wife into his house and consummate the marriage.

What if a man betroths a woman that he is forbidden to have sex with? Well, that really depends on the nature of the prohibition. “When a person betroths one of the women forbidden as arayot (the women listed as forbidden in Leviticus), his act is of no consequence. For kiddushin are not binding with regard to these forbidden relationships, with the exception of a menstruating woman.” Mishnah Torah, Ishut, 4:12.

Not just those, either. The whole idea of intermarriage? Technically, it doesn’t exist. “When a man betroths a gentile woman… the kidushin are of no consequence; the woman’s status is the same after receiving the kidushin as beforehand. Similarly, when a gentile…consecrates a Jewish woman, the kidushin are of no consequence.” Mishnah Torah, Ishut, 4:15. This is derived from the verse in Deuteronomy: “You shall not intermarry with them: you shall not give your daughter to his son, and you shall not take his daughter for your son.” Deuteronomy, 7:3. The Talmud understood the Hebrew phrase “לֹא תִתְחַתֵּן בָּם” – though translated as “you shall not intermarry with them” – as really meaning “the laws of marriage shall not apply to them.” See Babylonian Talmud, Kidushin, 68:2, Rashi.

Thus, with respect to these heterosexual relationships, Torah states that because of the sexual prohibitions associated with them, marriage is simply not available. You can try, you can say all the right things, but the couple will not be considered married.

Perhaps one of the reasons for this is because of the biblical obligations that Torah imposes on a husband. “He shall not diminish her sustenance, her clothing, or her marital relations.” Exodus, 21:10. The Torah takes seriously the sexual needs of the wife, and therefore obligates the husband to provide her with regular sexual intimacy. Obviously, if the relationship is one in which sexual relations are forbidden, then a man would be entering into a relationship in which he will be unable to fulfill one of his key obligations as a husband. Thus, the marriage is void ab initio; there simply can be no marriage.

Though homosexual relationships are not discussed among those that are ineligible for marriage, it seems from the Torah’s syntax that Torah did not even envision homosexual marriage as an option worthy of rejection. As you may have noted, all of the biblical verses contemplate a man who takes “a woman,” or prohibit giving “your daughter to his son,” or taking “his daughter for your son.” (Of course, Bruce-Caitlyn Jenner suggests another possible loophole: how do you define “woman”?) And indeed, if gay sex is prohibited, then the same rationale that would render a forbidden heterosexual marriage void would likewise preclude a homosexual marriage.

As Maimonides states, before Torah instituted marriage, people would just “hook up” and “make house.” Torah then implemented the marital institution with specific parameters. If those parameters are not met, then a Torah marriage simply doesn’t exist. I can take my aunt under the Chupah, find a Rabbi who is sympathetic to our love to officiate, put a ring on her finger, and break a glass – but Torah will recognize no marriage there.

Certainly, a ceremony can be created to celebrate the love between two homosexual individuals, and the couple can implement whatever rituals they feel might add to the meaning and significance of the ceremony. They can even call it “marriage,” and have it recognized by any of the 50 States. But it would not be considered a Torah marriage – or even a Jewish marriage, to the extent that Jewish ceremonies are guided by the Torah.

Torah is, however, not entirely quiet on the subject of gay marriage. In a somewhat sobering vein, there are two Midrashic/Talmudic passages which directly address the legalization and formal recognition of homosexual relationships. Clearly, this era is not the first time that society has evolved to the point that gay marriage was very much in vogue. One passage is from the Midrash regarding the activities of the generation that precipitated the flood in the days of Noah: “The generation of the Flood was not wiped out until they wrote marriage documents for the union of a man to a male or to an animal.” Midrash Rabba, 26:9. In considering this fairly harsh statement, consider that it was written thousands of years ago, far too long ago to have been intended as a political piece.

Then there is a passage in the Talmud which states as follows: “Said Ulla: There were thirty commandments that Noahides accepted, but they keep only three: not to write a ketuba for males; not to weigh dead human flesh in the market; and to show respect for the Torah.” Babylonian Talmud, Chulin 92a-b. In Ulla‘s view, even after the Noahides abandoned all other aspects of their morality, one of the few standards that they maintained appears to have been not legalizing gay marriage. Rashi explains that even though they were practicing homosexuality, they were not so brazen as to seek to formalize their conduct by writing marriage contracts between men. Thus, the recent Supreme Court decision, and the #lovewins celebrations appear to be an abandonment of this last vestige.

It is so tempting to look at a fellow Jew struggling with his inner nature, and say: Live and let live. Let love win. It doesn’t bother me, so why should I try to stand in between my brother and whatever happiness he is able to eke out of this life. However, for a Torah observant Jew, the above passages suggest that the mainstreaming of gay marriage in particular constitutes a failure of society’s moral code. That perhaps it is a point at which we have become too open-minded, too liberal in our values, and indeed, too sympathetic to another’s pursuit of happiness, when that happiness is at the cost of his individual – and our collective – moral and spiritual health.

I am, of course, fully guilty of this. I have my own sins, weaknesses and struggles, and I simply don’t have the heart, the appetite or the courage to speak the words that may offend, insult, condemn, demean or deprive another Jew of whatever sliver of acceptance and joy he has managed to find as a result of the significant successes of the LGBT movement.

However, I do believe that the decisions that we make should be informed ones, to the extent possible; and that as Jews, our analysis begins with the Torah.

Conclusion

In many significant respects, we are products of our environment. We have been brought up in a society in which homosexuality is no longer the taboo that it once was, and it has slowly become an acceptable part of our landscape. From there, after years of being inundated with both the open and subliminal messaging of acceptance, political correctness, sexual liberty, and autonomy, it has not been very difficult to mainstream homosexuality, to whitewash its forbidden past, and to silence opposition. And then here we are. Many advocates of gay marriage are not trying to dissemble society’s moral code; they’re just reaching for love and happiness in a culture that has encouraged them to do so, and has brought them to this juncture.

Is there a way to walk back this cultural tidal wave? And can we do it without losing our sense of compassion for our brethren? What is our role as a “light into the nations”?

Long ago, Torah admonished us: “Like the practice of the land of Egypt, in which you dwelled, you shall not do, and like the practice of the land of Canaan, to which I am bringing you, you shall not do, and you shall not follow their statutes.” Leviticus, 18:3. However, hanging on to our Torah standards and values in the face of the powerful temptations of gentile culture has always been an uphill battle. And we have suffered casualties in this battle in virtually all areas, but including, notably, a gradual numbing of our spiritual sensibilities, and a loss of the sense of urgency in our mission. Today, we’re tired. We want to stop fighting. We’ve had our fill of pogroms and decrees and inquisitions and holocausts, and now, living in an age and place of relative freedom and enlightenment, we just want to relax.

But can we? Can we lower our guard, yet still manage to hold on to our identity and destiny as Jews? Can we embrace the values of secular society without throwing in the towel on our own?