Comments on R Simcha Roth's teshuvah
or: Conservosexuality IV: Bride of Conservosexuality

A friend of mine wishes to comment on R. Simcha Roth's teshuvah. I disagree with most of his comments, particularly his final judgment that RSR's teshuvah does not sufficiently justify permitting homosexual activity. Others I agree with. I'll detail my comments later, but for now I'll let my friend speak unimpeded.

Postscript: At long last, my comments on his comments (and so on, and so on). His original comments are in italics.

Dear Sholem,

On your blog you raised the issue of halakhah and homosexuality, pointing readers to the papers of Rs. Simcha and Joel Roth on the subject. Allow me to respond to some significant deficiencies I found in R. Simchah Roth’s paper. I am just looking at Part 1 of his paper and I am intentionally focusing on the dry legal aspects because that is what interests me and because I have no pastoral obligations or experience. I do not pretend that such issues are unimportant because, in real life, they are probably most important.

The legal aspects are vitally important, and I thank you for focusing on them. However, I want to point out in passing that "dry legal aspects" are inseparable from "pastoral obligations." The posek both serves and elevates his community. Part of the reason RSR's teshuvah is more convincing, though not necessarily better argued, than RJR's, is that he clearly understands the psychological realities of homosexual life -- realities that bear directly on legal issues (see below for my response to your comment on ones). That is, RJR chooses to bring the scientific evidence of psychologists who hold that homosexuality can be "cured" -- psychologists who are not held in high regard in the scientific community. RJR does this not (only) because he lacks compassion in this case, but because he is failing to correctly understand the metzius, the lay of the land -- surely a requirement for any posek.

This impression of mine was strengthened by a speech of RJR at the 2003 Biennial Convention of the United Synagogue for Conservative Judaism, excerpted in the magazine United Synagogue Review. There he clambers to new heights of disingenuousness:

"It is the popular wisdom in the world that homosexuality cannot be successfully or even moderately successfully treated, and perhaps this is true. I do know that there are organizations and schools of therapy which claim to have at least some, and sometimes great, success. I don't know where the truth lies, or whether there is only one possible truth about this matter, but this much I wish to say. It is yet within my not so distant memory that the westerm medical world rejected such types of treatment as acupuncture and herbal remedies, yet these are now part of the normal arsenal of medical treatments. I urge halakhically committed gay Jews not to reject the possibility that the severity of the halakhic demand of celibacy might be somewhat or significantly mitigated by some modes of therapy and treatment. Since the halakhic prohibition stands irrespective of whether there is treatment possible or not, there is little to be lost in giving a chance to treatment for which claims of marked success are made and attested."

In other words, RJR is comparing acupuncture, which, despite its use by millions of Chinese over thousands of years, is still viewed with suspicion by many physicians ("part of the normal arsenal" is a great exaggeration), to the marginal research of a handful of psychiatric eccentircs, which is widely scorned and definitely nowhere near "great[ly]
success[ful]", let alone "attested." One must breathe quite deeply at such heights of willful denial.

Page 7: “Rabbi Aharon Feldman in Jerusalem tells a story about the Brisker Rav.” In footnote 33, Roth misidentifies the Brisker Rav as Rabbi Chaim Soloveitchik rather than his son, R. Yitzhak Ze’ev Soloveitchik, who is widely referred to as the Brisker Rav.

A fair correction, certainly!

Page 8: “Women are not obligated to marry and procreate.” Roth is correct that women are not obligated to procreate and his prooftext from Mishneh Torah is right on target. However, he fails to distinguish between an obligation to marry and an obligation to procreate. Rambam lists them separately in Sefer Ha-Mitzvot (positive commandments 212 and 213) and only regarding procreation does he say that women are not obligated. The Sefer Ha-Hinukh follows suit (commandments 1 and 552). Nevertheless, it is quite likely that a lesbian is exempt from the obligation to marry.

I might quibble with this were my memory of the relevant sugyot more reliable. However, I remember learning in the Gemara that the obligation of marriage is explicitly connected to the obligation to procreate. In any case, this point is not very closely connected to Roth's main argument.

Page 12: “This requirement does not seem to have been strictly enforced in talmudic times.” Roth states that the prohibition against fondling and kissing was not enforced in the times of the Talmud and brings proof from a story about Ulla who reportedly kissed his sisters on their hands. Even according to the original version of the story, that he kissed them on their chests (surely Roth recognizes that there is more to a woman’s chest than merely her breasts, especially when dealing with young girls), Roth fails to distinguish between non-sexual contact – she-lo be-derekh hibah – and sexual contact. The story about Ulla is a proof that non-sexual contact, such as handshaking, is permissible. It implies nothing about touching that sexually stimulates.

I think you make three claims here. First, you imply that according to the original version of the story (more correctly put, I think, a parallel version), Ulla kissed his sisters on their chests. I believe that the word in Aramaic means "bosoms," and it's glossed this way in a number of sources I have on hand. Whether you choose to gloss it this way, the fact remains that many scholars understand the kissing to have been on the girls' bosoms. Secondly, you characterize the story as "a proof that non-sexual contact, such as handshaking, is permissible." I think this is too broadly put. If I understand the passages correctly (in Avodah Zarah and in Shabbat), the story is brought first, and then, in the context of another beraita, reinterpreted as a proof for the permissibility of non-sexual contact. In a broader understanding of the sugya, however, the story is quite clearly sexual. See, for example, the sexually-themed aggadita in AZ, the context for the story there. In general, to say that the story "implies nothing about touching that sexually stimulates" is not true, I think. Certainly, in the immediate legal context to which the story is put, your claim is defensible. In the broader context of the sugya, however, the story is definitely concerned with such touching. (In passing, I should note my impression that Tosfos, in tractate Shabbat, understand the story's relevance differently than does Rashi, where your statement seems to be derived from. However, this too is not central to the discussion.)

Pages 12-13: “Someone who is under constraint is not required to fulfill a mitzvah at all” Roth correctly cites R. Yosef Engel as stating that there is no sinful act for an anus. This is also the view of R. Chaim Soloveitchik as cited by his student R. Baruch Ber Leibowitz in his novellae to Ketuvot. However, this is not an undisputed matter. No less an authority than R. Akiva Eiger disputes the entire idea, as clarified by R. Elchanan Wasserman in his Kovetz Shiurim. This is a very complex and difficult matter that cannot be stated matter-of-factly.

This is a fault of Roth's style, which is more popular and didactic than technical. I agree that he would have improved his argument by examining ones in a more detailed fashion, though I imagine you and I differ on the approach he should have taken. See below for further discussion of this point.

Page 13: “Pedophilia and kleptomania (and so forth) are recognized psychological disorders… homosexuality is not a pathological condition of the psyche” So what? It is a distinction but distinctions are only meaningful if they are relevant to the topic of discussion. Roth quoted R. Reuven Kimmelman as arguing that kleptomaniacs are anus to sin just like homosexuals are anus to sin. Roth responds that the reasons for the ones are different but fails to explain why that difference is significant. At the end of the day, regardless of the cause of the psychological duress, both kleptomaniacs and homosexuals are anussim. Therefore, according to Roth’s reasoning, kleptomaniacs do not sin when they steal. I find that to be a fatal flaw in his approach.

Again, Roth's style leads him into thickets of unclarity or outright misstatement. Let me try to read his writing a bit more actively (as today's scholarly lingo has it). (Keep in mind that what follows is sadly uncontaminated by a detailed understanding of ones as a halachic category. I look forward to being enlightened by you on the topic!) One is onus if he does not have access to the set of behavioral choices that are available to the fully functioning person. It is important, then, to distinguish between the colloquial and clinical senses of a term like "kleptomaniac." According to various on-line sources (I don't have a Diagnostic and Statistical Manual at hand), kleptomania, for example, is distinguished by the following features:

Recurrent failure to resist impulses to steal objects that are not needed for personal use or for their monetary value
Increasing sense of tension immediately before committing the theft
Pleasure, gratification, or relief at the time of committing the theft
Stealing not committed to express anger or vengeance and is not in response to a delusion or a hallucination

The precise diagnostic categories aren't relevant. The point I want to make is that there is quite a difference between the layperson's casual understanding of "kleptomania" and the clinical use of the term. Thus, in a significant way, a person with a diagnosis of kleptomania is, in fact, not liable for his theft -- he has a condition, in this case, a pathology, which renders the normal set of choices unavailable to him.

What is the connection between kleptomania and homosexuality? It's an a fortiori argument. If we (should) recognize kleptomania as substantive ones, how much the more so should we recognize homosexuality as a non-pathological compulsion, an entire category of relationships which by its very nature is not to be understood in the same way as heterosexuality! That is to say: the verse in Leviticus (and Rabbinic legislation up to the present day) use the category "lying with a man as one lies with a woman." Not only is the definition of this category unclear, RSR points out that one could live in a committed homosexual relationship while at the same time avoiding the behavior with Chazal understand as "lying with a man." More to the point, the use of the terms "gay/homosexual" and "lesbian" are terminologically inapposite when referring to the halachic literature. Gay, lesbian -- man dekhar shmey? Who of the past decisors ever heard of such a thing? These romantic, social, and sexual categories are new, not corresponding to Leviticus.

Page 13: “But halakhah does not discriminate against left-handed people because they have a natural and non-pathological condition…” But it does. A left-handed cohen is considered to be defective and may not perform the avodah. Halakhah also discriminates against people with bad voices, who should not be appointed as permanent Hazzanim; kohanim with deformed hands, who may not recite the priestly blessing in the synagogue; men who cannot grow beards, who are not considered to be fully adult until they reach the age of twenty; etc. etc.

My halachic erudition (what there is of it!) is not as great as yours. I am aware of these laws, but don't remember their wording. In any case, if I'm not mistaken, they are all to be found in the Shulchan Aruch. However, I would be very surprised if these halachot were actively followed today. This does not mean that they are automatically abrogated, or that I reject the general authority of the Shulchan Aruch. But the differences in our halachic philosophies should be clearly recognized here. I do not understand the Shulchan Aruch as a Written Torah to be changelessly followed, nor can I refuse to recognize a strong and meaningful connection between the practice of a community and the halachot that dwell with it. Discrimination against certain sexual practices, if those are indeed what are referred to by the verse in Leviticus and the Rabbinic tradition, are to be countenanced as the legitimate expression of the halachic system. However, as I say above, homosexuality, as a possible route to monogamous sexual, romantic, and emotional life, was not recognized as such in those stages of the tradition. A new category is needed, for the simple reason that when we refer today to homosexuality, we are not merely referring to sexual practices, but to familial and emotional ties.

Page 15: “Rava states that the human male must always be held to be in control of his sexual behavior… today, any male – straight or gay – will vouch for the fact that he can have an erection even at moments that cause him the most embarrassment” Roth totally misses the point. According to Rava, ones can only apply to actual, physical restraint. If a man is extremely attracted to a forbidden woman, something that Rava surely would acknowledge as possible, he may not claim that he was forced by his passion to sleep with her. Rava added that, in addition to the inability to claim attraction as duress, a man also may not claim physical duress. This totally undermines Roth’s argument that attraction is a form of duress. If it were, then even a heterosexual man would be able to claim such ones for, e.g., sleeping with a married woman to whom he is extremely attracted. (As an aside, it is highly problematic from an historical perspective to claim that Rava ignored the possibility of an unintentional erection. I can think of a number of possible explanations, but something this obvious would certainly not have eluded him.)

Agreed.

Page 17: “I strongly suspect that in all segments of Conservative Jewish society masturbation is not looked upon as an unforgivable sin, under any circumstances” A rabbi must teach halakhah even if it is ignored. There is a difference between overlooking a common sin and permitting it.

Agreed. However, I wish to point out that, historically speaking, the "active" status of certain halachot, that is, the extent to which they are actively considered by poskim, is definitely dependent on the attitude towards them in the community.

Page 17: “Apart from the gay person there is no one in the whole breadth of compassionate Jewish life to whom halakhah, as heretofore interpreted says, ‘you may never, ever, under any circumstances, find legitimate sexual expression and enjoy physical love’.” This is untrue. First, there is the agunah. Roth addresses this by stating that the Conservative movement has adopted solutions to solve the problem. I’m not sure that they solve every type of agunah problem but it does not matter for this discussion. Since I reject the various Conservative attempts as insufficient, I see his categorical statement as incorrect. A woman whose husband simply disappears may never touch another person sexually for the rest of her life. A woman whose husband adamantly refuses to give her a get may also never do so. She might have a glimmer of hope, which is more than a homosexual has, but I assure you that it will not appease her one bit. She is no less deserving of our sympathy and tears than a homosexual. Furthermore, I have male friends who have already given up on ever marrying. They know that they will die as virgins. Is it their choice to be single? I hope that we can be more mature than blame the “single’s problem” on people being too choosy. They have tried but not succeeded and have given up. Some are socially awkward, others are so uniquely situated that they cannot find someone similar enough to marry and others are simply unattractive on various level, none of which is their fault. The bottom line is that they will never, ever have sex in their lives. I have sympathy for them, and I wonder how they can do it. But I would not distort the Torah and permit non-marital sex out of pity for them. The Torah is too important to be treated that way.

I stand with you against distortion of the Torah! I think, though, that we might disagree on what such distortion entails. The examples you cite, though poignant, are not germane. The fact of the matter is this: homosexuals, as recognized today, are not failed heterosexuals. They are not men and women who have come to the conclusion, as Woody Allen's joke has it, that seeing people of the same sex would double their chances of a date on Saturday night. No indeed. Let me repeat yet again that homosexuals are members of a different, and heretofore halachically unrecognized category. The Torah is not distorted by recognizing this reality - rather, we are faithful to the pshat of the verse by respecting the gulf that separates "mishkav zakhur" from the gays and lesbians of today.

Page 17: “The alternative to condoning some homosexual acts is to condemn the observant gay person to a life without any possibility of expression of physical love” Here, Roth sets two extreme positions and demands that we choose either the compassionate one or the ruthless one. He neglects the statements from Orthodox rabbis with which he started the paper that try to navigate a third way, namely state that such acts are sins but in private counseling sessions work with the homosexual person to minimize the sins and find ways to live as healthily and religiously as possible. A homosexual who can contain his needs is a tzadik. A homosexual who cannot is not a tzadik. I can live knowing that I am not a tzadik and I see no need to distort the Torah so that someone else need not feel guilty. I know religiously oriented people who fully believe that they must observe Shabbat but feel that it is so great a restriction on their lives that they will never be able to do it. So they live their lives knowing that they are not perfect. Never do they demand that a rabbi state that their actions are permissible. They know that what they are doing is wrong but they feel compelled to do it. This is, indeed, standard in many segments of the Sephardic community.

I disagree that acknowledgment of homosexual relationships, a social creature not recognized (or indeed recognizable!) by past halachic generations, constitutes distortion of the Torah. To desecrate Shabbat is wholly different, from a religious and indeed a Jewish point of view, than the establishment of a loving homosexual relationship, though it be not at all contiguous with the Torah's or Talmud's definitions of "lying with a man" or (in the lesbian case) "two women rubbing up against each other." Are these phrases really to be equated with today's gays and lesbians?

Page 18: “It is surely more laudable to adopt the path of ko’ah de-hetera adif” Here is what I have written on the margins of my copy of this paper: Augh!!! This talmudic saying is not a praise of leniencies. It is a statement that the burden of proof on someone being lenient is greater than on someone who is being stringent. Therefore, someone who reaches that state of having sufficient proof to be lenient must have a very strong case.

Surely, if I may be melamed zkhus, Roth is here using the phrase as a melitzah, or rhetorical flourish. I cannot believe that he is the first rabbi to use the phrase in a looser sense than that found in the Gemara.

Pages 18-19: “You would not be aiding or encouraging him in his wrongdoing if he were going to do it anyway” This is a complicated matter and Roth glossed over an entire issue. Lifnei iver only applies to someone who cannot otherwise sin. However, there is still a rabbinic prohibition of mesaye’a yedei ov’rei aveirah. Roth ignores it. R. Moshe Feinstein and others jump through hoops in order to come to their conclusions in their specific cases. Roth ignores those issues, explicitly discussed in the responsa he cites, and fails to explain why mesaye’a does not apply to homosexual acts. It could be that his conclusion is still correct, but he needs to address this complex issue.

Agreed. If one views current, committed homosexual relationships as ipso facto sinful, your point is correct. As you have gathered by now, I disagree with the premise.

Page 19: “We have already demonstrated that there is ample room for accommodation to their special needs through halakhically condoning them” Roth explained earlier that we have to allow homosexuals to perform certain sins. Now he is claiming that his earlier logic proved that they are not sins at all. Condoning is not permitting.

In conclusion, R. Simchah Roth has failed to provide a sound halakhic reasoning to permit any form of homosexual activity. Both fondling and intercourse remain prohibited, despite our profound sympathy for the disadvantaged homosexual. How, exactly, to counsel individuals – when to tell them to fight their desires and when to instruct them on how to minimize their sins – is a very important pastoral issue that I am insufficiently qualified to address. However, I will add another halakhic issue – the largest problem I had with the R. Joel Roth’s paper. R. Joel Roth argues on pages 5-6 of his unnumbered paper that homoerotic fantasies are permissible as long as they do not lead to homosexual activity. He rightly contends that the discussion of hirhur is complex but states, “What is important to note is that the avoidance of hirhur is a desideratum, not a legal requirement. One must attempt to avoid hirhur, but is not legally liable for failure.” These two sentences are very different and, I believe, only the second is accurate. Hirhur – sexual fantasizing – is prohibited explicitly in the Talmud (Ketuvot 46a) and codes (Mishneh Torah, Hilkhot Issurei Bi’ah 21:5; Shulhan Arukh, Even Ha-Ezer 23:3). Both a heterosexual and a homosexual man must try to avoid sexual fantasies, even if complete success is impossible. This includes avoiding suggestive films and situations that will likely lead to such fantasies. Indeed, someone who fights his battle on the realm of thoughts will find that he is much less prone to more severe sins than otherwise.

With regard to hirhurim, I'm not sure I agree with your last claims. Nor am I sure that hirhurim can be so glibly equated with sexual fantasizing, which I understand as a much broader category. However, with regard to the strigency of the prohbitions against hirhurim, I will acknowledge your greater erudition and not quibble on the matter, although I think I would have something to say (given greater space and time) on the importance of recognizing differences in stringency and importance among different halachot.

With regard to your conclusion, I must say that your comments have helped me to a deeper understanding of the deficiencies in RSR's teshuvah. However, the conclusion I draw is different from yours. How so? I think Roth should have framed his approach to homosexuality more broadly. Any treatment of homosexuality according to an Orthodox understanding of halachah will founder on the central paradox, which is the following: Halachah is not only, or not primarily codified law, but case law. However, case law can only be rendered by those who fully understand the deficiencies and advantages of the codified law. Halachah with regard to homosexuality can never be other than what it is now, say the Orthodox. This is, of course, true to their way of thinking, because the halachah as codified is never (or only very glacially) changed, and acrobatic hoop-jumping and back-flips are executed with impressive regularity to maintain that stasis. What is the halachah about homosexuality? Look in the Shulchan Aruch. There it is forbidden. Therefore, it is and will always be forbidden, and committed homosexual relationships are always to be understood in the narrow terms of Levitically prohibited cultic sex acts. QED. This is where case law -- teshuvot, psakim -- come in. When RSR, in his teshuvah, brought the opinions of those Orthodox poskim who encourage their questioners not to relinquish their status within the community, I gave a short little laugh of scorn, thinking that Roth was appealing to the "authority of the Orthodox" (as we too often do in the Conservative movement). But, again to give him the benefit of the doubt, he might have been doing this for another reason: to show that halachic case law is moving in a direction that recognizes the inapposite terminology and categorical incompleteness of previous generations' codified halachah.

I trust that my comments here will be seen as a confrontation with difficult halakhic concepts and not stereotyped as a homophobic response of hiding behing legalisms.

Sincerely,

An Anonymous Friend

Of course! And I hope that, in return, my flexibility will not automatically be characterized as a distortion of the Torah.

Kol-tuv,

A Non-Anonymous Friend