Guest post by Rabbi Shaul Gold
Last week a Federal judge in San Francisco decided to wield the power given to him to overturn the will of the people of the State of California and thousands of years of precedent to promote an agenda whose historic background is barely 50 years oldâ€”because he could. Last month a distinguished Rabbi published a Statement of Principles (link) that, he was quoted in the Forward saying, did not offer a clear enough solutionâ€¦ because, â€œthis is not a Sanhedrin, where a few people can come and abrogate Torah law.â€
The Statement of Principles has drawn much focus. It brings another social topic to the fore and presumes to speak for the caring and compassionate among the rabbis and leaders. Critics of the Statement of Principles have been accused of a lack of compassion and understanding of the pain and anguish that Orthodox homosexuals endure. It is patently unfair to label critics of the Statement of Principles and to tar them with the brush of homophobia and cold-heartedness.
No person of decency feels anything but compassion for the struggle of these unfortunate people. Nor do they lack in compassion for older singles, divorcees, the handicapped and a host of other people in difficult, heart wrenching situations, whether they are in that position by their own hand or due to conditions that are beyond their control. Any and every rav, any and every decent human being, would jump at any correct opportunity to alleviate their pain and to assist in lifting them up spiritually and materially.
However, not every problem has a solution and not every solution is worth trying (witness: BP). It is the height of hubris to claim that a small group of clergy and mental health professionals have the answer that has eluded good men for generations and that a few months of discussion on the exact language of a document were enough time to weigh the issues and present a new world order that only the homophobic could reject. For this consequence alone, that it sets its proponents on a higher moral plane, the document is fatally flawed.
Implicit in the quote about abrogating Torah Law is that, just like the judge in San Francisco, given the power, this would be an ideal case to wield that authority (Note: see this clarification: link). As such, it behooves us to review the Statement of Principles with an eye to how close the document comes to that point.
It seems to me that there are four flaws to this document that may make this document more than a simple declaration; it may be setting a dangerous precedent. A) It develops a new method of defining Halacha, B) It chips away at halachic principles and tries to divert or ignore serious issurim, C) It moves the issue from the domain of Halacha to a social compact, one better determined by board members and mental health professionals than by clergy, and D) It creates a â€˜protected classâ€™ that is more deserving of communal focus than others.
Paragraph 1 assumes that it is a self evident truth that all human beings â€œdeserve to be treated with dignity and respect (kevod haberiyot),â€ a concept that, aside from being benign, seems actually to be self-evident. It is not true, though. Courtesy is due all people, but honor and dignity are earned, not due by dint of birth.
Neither term translates as kevod haberiyot. Why then, use these terms as the opening principle upon which the document rests?
Perhaps this will inform us. Rabbi Sperber used the term â€œkevod haberiyotâ€ to establish a principle of the honor of the individual that would override communal honor and permit women to be called to the Torah. Conservative Judaism used kevod haberiyot, loosely interpreted as â€œhuman dignityâ€ as it has evolved in contemporary society, to liberalize its approach to homosexuality. Thus, the document bases its approach on Conservative and Sperberian principles, and accepting this document is essentially affirming Conservative Judaismâ€™s approach to Halacha.
That same paragraph neglects to distinguish between the homosexual who recognizes that his behavior is incorrect but has control/desire issues and the homosexual that wants to be accepted with, and respectful of, his orientation. The Halacha, under certain conditions, mandates shunning, admonishing, and other punitive measures that by nature embarrass, harass and/or demean one who is â€œomed bâ€™merdo,â€ yet this foundation paragraph considers that to be â€œa violation of Torah prohibitions that embody the deepest values of Judaism.â€ While these are wonderful sentiments, they are not in consonance with Halacha and they redefine the halachic playing field.
Chipping Away At Halacha
Paragraph 4 concedes that certain amorphous lesser acts may be proscribed. Paragraph 1 enjoins us to refrain from embarrassing, harassing and demeaning. How do we meld regulating the former without violating the latter?
There will inevitably be yichud and chibuk vâ€™nishuk issues. Can we shake his hand? Can he kiss the groom at a wedding? (A prominent rabbi was prohibited this by the Takana Forum) Can he sit in close quarters with other males? Can she hug other women as many women regularly do? How will we implement this without devaluing him or violating the â€œbigâ€ three? These are all relevant â€œlesser actsâ€ and restrictions; wouldnâ€™t it have been more responsible to plot out how to deal with that concomitantly?
Paragraph 8 declares that Jews with homosexual orientations or same sex-attractions should be welcomed as full members of the synagogue and school community. Public acceptance of orientation makes the entire community complicit and enabling of the active homosexualâ€™s transgression and adds another roadblock in the individualâ€™s struggle to balance his urges and sensations with Torah and Halacha.
Paragraph 11 states that communities should display sensitivity, acceptance and full embrace of the adopted or biological children of homosexually active Jews. Does this not validate the homosexual relationship through the back door? This document has moved from kevod haberiyot, to accepting orientation to permitting communal involvement and ritual leadership to accepting those involved in blatant public homosexual activity. Quite a declaration of principles!
Paragraph 12 declares that Jews who have an exclusively homosexual orientation should, under most circumstances, not be encouraged to marry someone of the other gender. It is true that living alone is a painful and emotionally difficult state. If we discourage heterosexual connection are we not, by omission, fostering the homosexual companionship (which is, itself, an issur Yichud)? Is the mitzvah of pâ€™ru urâ€™vu not important enough for one to pause before dismissing marriage out of hand?
Moving The Issue From A Halachic One To A Social One
Paragraph 2 subtly changes the focus to issues other than Halacha as the basis for discussion, as if to say that Halacha confers no negative status on the homosexual under any circumstances. The issue is a social-compact one, not a Halachic one.
Paragraph 4 distinguishes between orientation/ attraction on the one hand and hirhurei aveirah on the other. The distinction, if there is one, is very fine. By excluding hirhurei aveirah the document really limits its scope to a drastically diminished subgroup. Unfortunately, this leaves the Statement relevant to the handful of people that are only attracted to, but never actually have hirhurim about, others of the same sex, while giving the impression that it is relevant to a large-tent population. The authors must have forgotten that since in paragraphs 9-12 they include everyone, including those actually living together (a step beyond hirhurim).
Paragraph 9 states that it is the responsibility of the lay and rabbinic leadership in each individual community to determine eligibility for particular religious offices. I believe that we have now established the purpose of the document. It is to permit full range of involvement in all manner of communal affairs to the homosexual and to remove this issue from the domain of Halachic Standards to the laity based on communal harmony and communal culture standards.
Singling Out Homosexuals
Paragraph 4 informs us that homosexuals are human beings. So are those who desire their mothers, their pubescent daughters, their innocent talmidim, their friendâ€™s wife or their pet. Is a person struggling with pederastic attraction less of a human being? What especially distinguishes the homosexual from all other arayot? This statement should be inclusive of all sorts of sexual deviance and not limited to homosexuality. The exclusion of all other â€œervah-attractionsâ€ seems discriminatory.
Paragraph 4 also distinguishes between hirhurei aveirah and â€œsame-sex attraction,â€ the one being â€œpossiblyâ€ assur, the other categorically not. While hirhurei aveirah are assur in all forms of sexuality, we rarely hear about most hirhurim. Perhaps this is because the Oedipal son, the pederast and the one lusting after his neighborâ€™s wife arenâ€™t seeking communal acceptance as G-d fearing individuals with prohibited desires. They may be afraid of the social and communal opprobrium and the lack of sensitivity to their struggles and they probably sense that no one is drafting a statement of principles for their challenges. The one that we are very aware of is the homosexual one and that only because it is the social issue of the moment. The goal of the document is to serve as a means of accepting his orientation.
Paragraph 4 also states that homosexuals are still human beings deserving of equal valuation with other humans. The problem is that the public at large is being asked to respond to the homosexualâ€™s desire to be valued â€“not just as a human being, but as a homosexual human being. This necessitates my compromising on principle rather than his respecting societal and halachic norms. (Would we value the human being aching to be accepted and valued for his misogyny? For his racism? Mind you, not for acting on his racism or misogyny, not even for those hirhurimâ€”just for his racist/misogynist orientation.)
Paragraph 4 states that it is critical to emphasize that Halacha only prohibits homosexual acts; it does not prohibit orientation or feelings of same-sex attraction. Homosexual attraction is just as assur as sibling attraction, oedipal attraction, etc. Although I have refrained from citations as this is not the venue for it, please review the Chinuchâ€™s approach to all arayot for a better understanding of this concept. The Torah punishes for the action, but does not permit the â€œlav sheâ€™ein bo maâ€™aseh.â€
This also disenfranchises the divorcee with children who doesnâ€™t fit in and the older single, both of whom now must deal with being valued for their non-existent â€œhomosexuality.â€ It also leaves out those with deviant financial orientations, with divergent animal-rights and labor orientations, with different communal education orientations, many of whom have been pilloried by the same good-hearted people who canâ€™t abide the discrimination against gays in our community.
I may be wrong; I may be looking for things that simply are not there but I highly doubt that many of the documentâ€™s signers gave it much thought. The press noticed an agenda as well; the bloggers who wanted more also noticed. If we put G-d and Torah before agenda then we might have a consensus document that would address the real problems facing Judaism, instead of piggy-backing on secular societyâ€™s agenda and calling it Jewish compassion.