Dueling Musings

My bar-plugta (sparring partner, one could say), the lovely, talented, and pseudonymous Simcha, has supercommented my comments on R. Simcha Roth's paper on homosexuality. I'll address the most interesting of them here. (On the Orthodox internet, and perhaps in learned journals as well, I don't know, it has become the practice to qualify the designation "rabbi," lest one unwittingly extend legitimacy to suspect ideologies or practices. I find this objectionable, to say the least, so I can't let it go without comment. Where does such qualification stop? Certainly there are those in the Orthodox community who would prefer to label any Yeshiva University-ordained rabbi with YUR, and any more liberal musmach with, say, YCTR. Perhaps we should cut to the chase and label any given member of the Jewish clergy either OR or TR -- "our rabbi" or "their rabbi"?)

CR. Artson claims that the homosexual relationships in the ancient world, and the ones which the rabbis addressed, were unequal and abusive. There were no "constitutional homosexuals" who had equal, loving relationships and, therefore, neither the Torah nor the rabbis could have prohibited something that did not exist at the time.

I find this argument flawed for a number of reasons:

1. This assumes that the prohibition in the Torah was written by humans to address their contemporary world. I deny this because I believe that the Torah was written by God and addresses the world on many levels, at least one of them being eternal. Even those who believe that the Torah was only written under Divine inspiration and not dictated by God, would still agree that the Torah addresses more than just the contemporary ancient world. God can address relationships that did not exist at that time.

As far as the authorship of the Torah goes, I hold both A and B. That is, the Torah was written by humans to address their contemporary world, and it was written by God, addressing the world on many levels (some of them eternal). These propositions are by no means contradictory! I reject the (ostensible) compromise of "only written under Divine inspiration and not dictated by God," since this formulation is (a) banal, (b) inexact, and (c) lacking in any recognition of the mysterium tremendum which must accompany any discussion of the relationship between God and Torah. Matter-of-fact catechisms must not be the stuff of modern Jewish theology.

Can God address relationships that did not exist at the time of the Torah? To the extent that such a thing can be directly predicated of God, I say, "Sure, why not?" The only problem is showing that God does address, via the prohibition in Leviticus, these currently existing relationships. That is, we need to see where the Gemara addresses loving homosexual couples. Onward!

2. Even if loving homosexual relationships did not exist in the ancient world, the rabbis were renownedfor their creativity and imagination. If they could conceive of such a relationship, then perhaps they were prohibiting it as well. CR. Artson has entirely failed to prove that the rabbis never addressed such a relationship.

Surely R' Simcha knows that לא ראינו אינו ראיה -- negative proof does not constitute proof. The rabbis were creative, imaginative, brilliant men, but neither superhuman nor superhistorical. To expect them to have addressed such a relationship is asking of them these qualities.

3. There is an explicit and oft-quoted source that contradicts CR. Artson’s entire thesis. The Gemara in Hullin (92a-b) quotes Ulla (late 3rd, early 4th cen.) who praises the ancient nations for not writing a ketuvah, a marriage contract, for homosexuals. Similarly, the midrash Bereshit Rabbah (26:5) relates: "Rav Huna [said] in the name of Rav Yosef: ‘The generation of the flood was not obliterated until they wrote marriage contracts for males and animals.’" Marriages - loving, mutual relationships - between two men were conceivable to the rabbis of the Talmud and were unequivocally opposed by them. (See CR. Joel Roth’s paper on the subject, p. 7 on this subject.)

My answer to this is the following:

Nah.

Let's go to the tape. RJR brings three sources quoted by R. Bradley Artson, saying that RBA "misinterprets all three." It is Rabbi Roth, I fear, who misinterprets. We'll take the sources in order.

1. The Gemara in Hullin attributes to Ulla the statement that the Noachides "do not write a ketubbah for a male." (Although I haven't read RBA's teshuvah, I assume he holds that Ulla's statement can be interpreted to mean that committed homosexual relationships were unknown to the Rabbis, or at least to Ulla. I'm not sure how strong this support is. However, RJR's dimissal, as we'll see outside this parenthesis, is equally uncogent.) RJR quarrels with RBA's translation of Rashi's commentary on the passage. The relevant phrase in Rashi is "אע"פ שחשודין למשכב זכור ומייחדין להם זכר לתשמישן", which RJR translates as "Even though they are suspect to engage in homosexual behavior and designate a male as their partner". (I've already mentioned my problems with the equation of mishkav zakhur and "homosexual behavior.") RJR quarrels with RBA on the latter's translation of מייחדין (meyakhedin, from the root yakhed, or "separate") as "sequester." RJR prefers "designate." I think he is correct. Where RJR slips is translating תשמישן (tashmishan) as "their partner." Unless I'm gravely mistaken, it seems clear that tashmish is used here, as it is frequently in the rest of rabbinic literature, to mean sex. Rendering the word as "partner" lets RJR indulge in a conjectural digression, according to which the Rabbis knew of loving homosexual partners but refused to extend to them a ketubbah, i.e. legitimacy. But it is a lot less of a stretch, I think, to explain that Rashi's commentary is referring to those who choose certain men as sexual partners -- much closer to the way that heterosexuals today wrongly understood homosexuality, i.e., as a serial pairing of man with man, rather than a possible foundation for loving relationships.
How Ulla's statement itself applies is a separate matter; I'm concerned here with its use by RJR.

2. In a passage from Genesis Rabbah, the following statement is attributed to Rabbi Huna in the name of Rabbi Joseph: "The generation of the flood was not obliterated from the world until they wrote marriage contracts form males and beasts." RJR again takes issue with RBA's interpretation of the Greek-derived word (גמומסיות) that's central to the passage. He claims the term is a positive one, while RBA, for his part, sees the term as pejorative. Again, I haven't read RBA's teshuvah, but the claims attributed to him by RJR are indeed unconvincing. RJR's interpretation, however, also begs the question. He calls the term "positive," translating it as "marriage contracts" or "wedding songs." However, he does not support these translations with any parallel uses of the word in the Rabbinic literature, nor is it clear to the reader whether this word is, in fact, being used in mocking fashion. RJR needs to do more work here to support his assertion. (In passing, one should mention that characterizing "wedding songs" as tout court "positive" does not take account of the Rabbis' ambivalent attitude, to say the least, toward non-Jewish wedding celebrations. There are even explicit halachic rulings against wedding songs.)

3. The final passage is from Sifra: "I [God] have forbidden only those practices which they and their ancestors have established. And what did they do? A man would marry a man and a woman marry a woman, a man would marry a woman and her daughter, and a woman would be married to two men."

RJR correctly points out (presumably in objection to RBA's approach) that "there is no way to read this passage as implying only lustful, non-supportive, loveless relationships." But that is not what RJR needs to show. He needs to prove that the passage implies supportive, loving relationships in these categories -- which is not the same thing at all. It might be, for example, that the Rabbis knew of loving relationships in the other enumerated categories, but that does not imply that the same reason can be applied to all categories together.

Thus, in my opinion, even if CR. Artson’s methodology was valid - which I do not concede - he has not proven his point. Furthermore, CRS. Roth has not proven his point in the traditional halakhic realm. So we are left with a conservative, strict approach.

I disagree with the dismissal of RSR's teshuvah. I think he succeeds in narrowly defining the strict halachic prohibition and applying it in a compassionate way to gays and lesbians. His many errors, I think, do not undermine the basic thrust of his argument. I have not yet read RBA's teshuvah.

With all due respect, R' Simcha, you (and those agreeing with you) are left with a conservative, strict approach because you see fit to interpret the sources differently. That does not mean that the conservative, strict approach is the only possible or legitimate one. To put it another way, you are willing to assume that today's gays and lesbians fall into the category of mishkav zakhur as understood by Leviticus and the rabbis. I am not willing to make such an assumption, but you can, of course, follow the opinions of your rabbis. Eylu ve-eylu.

There is something else here that needs to be said, in the spirit of rendering explicit what has been up to now been only implicit. Halacha is directly related to morality, and we need to have convincing moral and ritual reasons for our halachot. Even if the rabbis knew of loving homosexual relationships, which I strongly doubt, it does not follow that their moral reasoning, and therefore their halachic approach, is one we should adopt.