Orthodoxy and LGBTQ in a Progressive World

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by Rafi Eis

The 2001 documentary Trembling Before G-d, changed the trajectory of Orthodox Judaism’s approach towards homosexuality. Until that point, a mainstream Orthodox view considered homosexual activity as a promiscuous lifestyle choice.[1] The film, however, profiled several Orthodox Jews for whom homosexuality was nature. They desperately wanted to live an Orthodox heterosexual life and build a family. However, no matter how much they sought to and despite endless hours of therapy some could not change their essence and develop the requisite physical attraction to the opposite gender. They felt trapped by their homosexuality. This important reframing imparted the message that homosexuals deserve empathy and support instead of censure. The movie had its desired impact and currently almost all rabbinic leaders use the language of compassion instead of promiscuity when discussing homosexuality. This is an important and positive change.

As normally occurs, however, culture continues to evolve, and the broader LGBTQ movement has grown over the past two decades. Gay marriage became legal in the US with the Supreme Court’s 2015 Obergefell decision, followed by sexual orientation and transgender employment protections in the 2020 Bostock decision. And while sympathy and support seemed to suffice in the first decade of the 21st century, it no longer does, since compassion and support do not overcome the immense pain caused by exclusion. Progressive advocates within the Orthodox community push for greater LGBTQ inclusion. Some even advocate for the same benefits and opportunities afforded heterosexuals, including recognized marriages and leadership positions.

Rabbinic leaders have recently avoided responding with clarity. In wanting to offer support and be as inclusive as possible, their silence has allowed progressive advocates to take over the public square and win over followers to their ideas. Those pushing for inclusion highlight the pain and the risk of suicide of LGBTQ individuals and then appeal to ideals of morality, equality, respect, human dignity, diversity and care as the basis to change Halacha. 

I do not doubt their desire to end pain and alienation, and I share that intention. Nonetheless, these progressive proposals and the invocation of these moral principles, do not accurately reflect the Torah’s vision of marriage in the context of the overall purpose of human life. Biblical and rabbinic commands and prohibitions promote the life well lived, which is to build a good and lasting civilization that cultivates human growth and flourishing. On a civilizational level, this can only occur when heterosexual marriage with its innate procreative ability is central to the human social existence. The questions that need to be navigated over the next few years will only get more difficult. To properly transmit Torah, leaders need to support struggling individuals while ensuring that the Torah’s view of the proper life is promoted.

The Cost of Orthodox Silence

Following the release of Trembling, the confrontation between Halacha and the realities of homosexual individuals began as optimistically as could be expected. Rabbi Chaim Rapoport’s 2004 Judaism and Homosexuality: An Authentic Orthodox View,[2] was well received within the Orthodox community for its thorough evaluation of Halacha and deeply sympathetic tone. A 2010 “Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community”[3] began with “All human beings are created in the image of God and deserve to be treated with dignity and respect.” Nonetheless, it also firmly rejects Orthodox acceptance of gay weddings.[4] Over 200 rabbis, educators and community leaders, me included, representing a range of Orthodox communities, signed on to the statement.

A decade later, and especially in the aftermath of the Obergefell decision, many LGBTQ Jews want full acceptance. Ideas that were ahead of the curve in 2010 are considered behind it in 2021. In the aftermath of the Obergefell decision, the Rabbinical Council of America (RCA) protested and later began to frame an approach in its “2016 Resolution: Principled and Pastoral Reflections on Sanctity and Sexuality.”[5] It reminded Orthodox Jews that our people are sometimes called upon to stand against currently popular cultural ideas, it articulated a Jewish view of sexuality and marriage, and then laid out a framework for compassionate application that upheld Jewish values. It was an excellent start for navigating this difficult issue.

Unfortunately, the RCA and other Modern Orthodox institutions have not built upon it. Instead of reiterating their position and explaining its underlying vision for life, Orthodox leaders have largely fallen silent. In the aftermath of the Bostock decision which legally normalized transgenderism, the RCA did not issue a statement.

Similarly, Tradition, a journal published by the RCA, has also stopped discussing the topic. Between 2000- 2007 it published multiple articles on homosexuality and Halacha. After a particularly strident essay[6] in 2000, a subsequent issue ran several letters[7] that rejected some of the claims and offered other perspectives. It published another article in 2004,[8] and a review of Rabbi Rapoport’s book in 2007.[9] Since then, however it has not had a single article on homosexuality and Halacha. When the US Supreme Court legalized gay marriage in its 2015 Obergefell v. Hodges decision, Tradition had nothing to say. In contrast, the religious (though primarily Christian) magazine First Things, ran a symposium on the SCOTUS decision.[10] It has also published numerous articles on the topic since.

The quiet approach is quite appealing. Sympathy is core to a Jew’s identity,[11] and compassion for others is one of the most vital religious obligations.[12] Sefer HaChinuch similarly describes Israel as “merciful ones, the descendants of the merciful.”[13] In contrast, callous disregard for another’s needs is a characteristic attributed to the citizens of the biblical Sodom.[14] In the early part of the century, Orthodoxy could publicly offer compassion as part of a halachic framework. In the post-Obergefell environment, where restating Judaism’s principles could exclude or offend, many leaders adopt the adage thatnothing is better for a person than silence.”[15]

The Talmud, however, never advocates for unlimited mercy, since what is beneficial in measure can have harmful consequences in excess, and even can have destructive consequences, though unintended. Immediately after claiming that aristocratic indifference to the poor signals a lack of Jewishness, the Talmud reminds the poor person that “Whoever looks to the table of others for his sustenance, the world is dark for him,” to which Rav isda adds that “Even his life is no life.”[16] Charity may help in the short term but can also create long term dependency. Self-sufficiency is the goal, not increasing mercy.[17] King Saul’s misplaced mercy on Amalek later led to terrible cruelty,[18] and King David’s intense mourning for his violently rebellious son Absalom, alienated those who fought alongside him to rightly restore his government.[19]

The quiet approach of Orthodox rabbinic leaders has unfortunately been harmful. Liberal rabbis who identify with Orthodoxy have taken over the public square and pushed the boundaries, with little response. They justified or even celebrated Obergefell as moral and just. Some even officiate at gay marriages that have the trappings of the Jewish Orthodox ceremony- a huppah, sheva brachot, etc.[20] One scholar predicts that just as Halacha has evolved in the past, it will similarly change to include gay marriage.[21] In the process, some have cited Biblical verses and Talmudic passages about the importance of loving all Jews, the destructive nature of loneliness and the centrality of human dignity. They contend that such changes are core to the Jewish vision to “Execute true justice; deal loyally and compassionately with one another.”[22] This gives their proposals a veneer of halachic legitimacy.

A recent incident, at Yeshiva University in New York, highlights the consequences of this dynamic. When a group of YU students wanted to open an LGBTQ club, the university dawdled with four months of committee meetings, which included professors, Roshei Yeshiva, and mental health professionals. It then declined to approve the club in a one-page press release[23] that primarily focused on support for its LGBTQ students. Such support is wholly appropriate. The specific request for the club, however, was only addressed in a single bullet point of the press release. In explaining its decision, YU correctly wrote that “The message of Torah on this issue is nuanced,” but that “forming a new club as requested under the auspices of YU will cloud this nuanced message.” While Halacha was ultimately upheld, it was done so timidly. YU’s statement did not explain the competing principles that make the decision nuanced. It never mentions forbidden relations or the primacy of marriage. Likely guided by an empathy mindset, YU leaders declined to provide a robust explanation for the virtue of the Torah’s approach.

Disagreeing without explaining the misuse of Jewish sources or promoting the Torah’s vision of life leaves an atmosphere of confusion. The statement encouraged LGBTQ students to “socialize in gatherings they see fit,” as if this is halachically neutral. This lack of clarity is not just limited to YU press releases. The larger Jewish community looks to YU for guidance on navigating issues of the day. Lay people seek advice about how to navigate this bewildering cultural issue in their workplace. They want to properly communicate the Torah’s values to their children. Judaic studies teachers need to teach Torah values to their students even and especially when they conflict with current Western ones. When leaders are silent, the larger community cannot transmit the Torah’s values to the next generation or be ambassadors for Torah to the larger community. 

While YU meekly denied the LGBTQ club application, YU’s student council presidents declined to take a stand.[24] YU is supposed to cultivate the rising leaders of the Modern Orthodox community. While its current leadership is motivated by sympathy and compassion, the next cadre of Jewish leaders did not feel empowered to lead.

Some YU students defended the Torah’s stance based on obedience to God’s commands.[25] This “chok-ification”[26] approach is also limited. At the most basic level, it turns mitzvot into ritual actions performed in a specific context that have no further impact. Mitzvot cannot therefore shape a person’s identity or outlook. Furthermore, when the Torah clashes with contemporary ethics, the appeal to obedience renders God’s laws indefensible except to the fully committed.

Properly transmitting Torah requires articulating its vision for the proper life[27] in a way that relates to the realities that we face, even as they constantly change. The RCA’s 2016 resolution provided an excellent foundation and I will build upon it below.

In this sense, I very much wish that I did not need to write this article. Others who are more learned and articulate would represent Torah better than I can. Since too many have not addressed this issue, I am putting forth my best effort to demonstrate that God’s “word is true and enduring forever.”[28] This essay is directed to religious individuals who begin with that axiom about the Torah. It does not aim to change the minds of those who prioritize secular ethics over Torah ones.

I hope and pray that my words resonate.

Fundamentals of Human Life

The Torah has its own vision for the moral life. Its self-description of God’s commands is “wisdom and insight.”[29] Proverbs similarly asserts that the Torah’s “ways are pleasant ways,” that Torah “is a tree of life to those who grasp her.”[30]  Wisdom, insight, pleasantness, and life are terms that humans use to judge the worthiness of an action or idea based on their this-worldly experiences, as opposed to theoretical ideals that they conceived through reason. We then work towards increasing them in our lives, which the Torah says that its prescriptions do. Torah performs these roles because “HaShem founded the earth with wisdom; He established the heavens with understanding.”[31] The Bible’s rules align with the purpose of creation and therefore following them leads to a better life as judged by humans in this world.[32] As Rav Soloveitchik writes:

The most beautiful aspect of the Bible is its Weltanschauung, its world view, its spiritual outlook upon both the world and man. The Bible is concerned and preoccupied with human tragedy and success, with human contradictions, with human smallness as well as greatness.[33]

The Torah is not primarily for homilies and inspiration, nor is it about blind faith and obedience, but guidance on the deepest and most difficult questions of life. Every command of the Torah “is our life and lengthens our days.”[34]

Numerous societies and philosophers have constructed other ethical systems. For the Jew, however, “there is only a single source from which a Jewish philosophical Weltanschauung could emerge; the objective order- the Halakhah.”[35]

Of course, the Torah values human dignity, alleviating pain, companionship, respect, and diversity. One can cite numerous sources to this effect. The mistake of progressive Orthodox advocates is to view these virtues through a lens of contemporary secular society. The primary value of secular culture is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as Justice Anthony Kennedy wrote to permit abortion in the 1992 Planned Parenthood v. Casey[36] Supreme Court decision.[37] Becoming one’s autonomous and authentic self brings out human dignity and living one’s values are of the highest order (so long as it does not involve harming another). To live otherwise causes pain, and a system with rules limiting this secular autonomy is viewed as cruel. Ensuring that each person gets to live as they self-identify is the greatest good that one can do. 

It is therefore not surprising that in Obergefell[38] Justice Kennedy wrote that “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” He continues that homosexuals yearn for the right to marry in order to “find its fulfillment for themselves.” The guiding principle legalizing gay marriage is to avoid being “condemned to live in loneliness” based on “equal dignity in the eyes of the law.” The language of Justice Kennedy and progressive Orthodox rabbis is nearly identical.[39]

The Torah lays out its moral system regarding marriage and the family in its two stories of the creation of humanity. In the first story, Genesis describes man and woman as being created equally “in God’s image,”[40] which lays the foundation for human dignity and equality of the sexes. The human mission is to “be fruitful and multiply, and to fill the earth.” Humans are then told “to master [the world]. To rule the fish of the sea, the birds of the sky, and all the living things that creep on earth.”[41] Procreation and scientific advancement are essential components of being created in God’s image. 

Here we should notice that procreation precedes accomplishment and ambition chronologically and axiologically. As an example, in the Tower of Babel story, the people reverse this order. Pioneering technology (bricks)[42] and engineering,[43] become the factors that restrict population growth.[44] In response, God ends their innovative city and ensures that they continue filling the world with life.[45]

For the liberal world, the primary focus is on human autonomy and the individual’s meaning and value. In contrast, the Torah’s first axiom is that humans must be developing something that lasts beyond themselves. The future frames the present. To use a less controversial example, voluntary castration is a legitimate choice in the secular world, whereas Halacha forbids it.[46]

The divide between Torah values and progressive ones is not just about different starting assumptions. Rather, they actively contradict. Children demand time and resources that hinder a parent’s ability to explore all their interests and ambitions. Children have become secondary in our secular world. For a civilization to perpetuate itself it needs to average 2.1 children born per woman. Western countries, however, have below replacement fertility rates,[47] since children are not the priority. One exception is Israel, whose birth rate is above 3 children per woman.[48]

The idea that God “formed [the world] for habitation”[49] and that the “the world was created in order for people to be fruitful and multiply”[50] is so central that the Talmud states that, “Anyone who does not engage in the mitzvah to be fruitful and multiply is considered as though he sheds blood… and diminishes the Divine Image.”[51] Onan’s intentional wasting of semen, deemed evil by God, resulted in his premature death.[52] The goal is to build civilization which requires prioritizing procreation.

This, however, is not the end of the story. The next chapter of Genesis retells God’s creation of humanity from a different perspective. Instead of emphasizing human reproductive and utilitarian capacity, the human existential state is emphasized. Prior to the creation of Eve, Adam experiences loneliness. When he looks around to God’s other creations, he cannot find companionship. The message is clear. None of the existing creations will solve human solitude. 

This is an accurate description of the human condition. In contemporary society, loneliness has become a top public health concern and has been correlated with reducing a person’s life span on par with smoking 15 cigarettes a day. Attempting to address its problem, the United Kingdom appointed a Minister for Loneliness.[53]

A government program is likely the wrong approach, as the Torah is about to tell us. Until this point in creation God fashioned all animals (male and female) and Adam from the earth (2: 7, 19). Instead of following that model, God created woman from Adam himself. The human experience of reproduction is supposed to be qualitatively different from the animal one. Long term attachments among breeding partners are rare amongst animals. Human marriage, however, is not just about finding a suitable reproductive partner. Rather, finding a spouse feels like being reunited with a long-lost part of oneself.[54] The sentiment of “bone of my bones and flesh of my flesh”[55] permeates the marriage experience. Marriage creates wholeness and completeness when a human male and female become one.[56]

This beautiful vision of marriage, however, is fragile. The Torah therefore adds specific directives to ensure its success. At the most basic level, the marriage as a long-term commitment must be chosen by the partners. While it was common in the ancient world for women to have no say in their spouse, the Torah explicitly expects that a woman marry a man “who is good in her eyes.”[57] Though Abraham arranges Isaac’s marriage to Rebecca, they both subsequently choose each other of their own free will.[58]

Creating a thriving interdependent marriage requires independence from other familial authority. The Torah is fully aware of the complicated relationships that can exist between parents and children, and spouses and in-laws. And the Torah is crystal clear that a successful marriage depends on children, creating a new home and prioritizing it over the one that they were raised in.[59] Parents must be respected, but there are boundaries. Similarly, the Torah’s message to parents is that the goal in raising children is not extending themselves,[60] but building beyond themselves.

Of course, marriage requires investment, as well. A husband is obligated to support and care for his wife[61] and must spend additional time at home cultivating their marriage during its first year.[62] Love and honor are essential.[63] Some concrete duties may lack the poetry of romance, but when taken together, they enable a man to “cling to his wife, so that they become one flesh.”[64] 

Most significantly, these are not two separate stories of the creation of man, one about procreation and one about companionship. They are complementary ones, where the second story assumes knowledge of the first and imparts wisdom supporting the achievement of the goals of the first. The unbound human creativity commanded in Genesis chapter one can go awry when seemingly creative acts that master nature become destructive. A simple example is nuclear energy. Humans can conquer the atom and power civilizations in ways that his ancestors could never have dreamed. We also created the most powerful destructive force that the world has ever seen. Within a few moments entire cities can be wiped out and millions killed. Lurking in the shadows of the ambitious technocrat is the destructive capacity of innovation. Whereas human beings are told in Genesis 1 to conquer and harness nature, in Genesis 2, they are instructed “to work and guard the land.”[65] They must ensure that in their creative process they build instead of ruin.[66]

The unfettered procreation implied in Genesis 1 is similarly modified. Populating the whole earth is not merely a question of numbers. Human children require care to grow, but also training to be successful. 

The essential nature of parenthood flies in the face of Jean-Jacques Rousseau’s idea that humans are naturally good and that it is society that corrupts us.[67] Rather, as Thomas Sowell astutely observed “Each new generation born is in effect an invasion of civilization by little barbarians, who must be civilized before it is too late.” Or as the Torah says, “the devisings of man’s mind are evil from his youth.”[68] Radak there explains that properly civilizing the world requires the education that comes from the home.[69]

It is no coincidence that the flood story ominously begins, “When people began to increase on earth…”[70] In contrast, God chooses Abraham precisely because he will “instruct his children and his posterity to keep the way of the LORD by doing what is just and right.”[71]

The minimal obligation of procreation is satisfied with one male and one female child, which is the replacement of the parents. For many poskim, contraception is a permissible temporary option when it supports child-rearing, like with the spacing of children.[72] Family peace and harmony place legitimate limitations on reproduction.[73] Raising children is a delicate process that requires time, energy, and capacity.

In an ironic animal kingdom twist, while humans have greater intellect and creative capacity, human babies are altricial, born in a more fragile state than other animals. By design, they require more care so that raising children requires two parents, not one. This is part of God’s way of ensuring that both parents will participate in raising him. More specifically, fatherhood in the animal kingdom is rare, but for humans it is essential. 

After calling marriage the “single most humanizing institution in history,” Rabbi Jonathan Sacks continues:

The family, man, woman, and child, is not one lifestyle choice among many. It is the best means we have yet discovered for nurturing future generations and enabling children to grow in a matrix of stability and love. It is where we learn the delicate choreography of relationship and how to handle the inevitable conflicts within any human group. It is where we first take the risk of giving and receiving love. It is where one generation passes on its values to the next, ensuring the continuity of a civilization. For any society, the family is the crucible of its future.[74]

We are therefore “obligated to marry in order to procreate”[75] since the unity of procreation and education in marriage is the building block of civilization. Citing the verse “It is not good for man to be alone,” as Jewish LGBTQ advocates do, misreads the Biblical verse. Spousal companionship is an essential part of “being fruitful and multiplying.” It is the framework by which society ensures that children are raised best. It is true that “Any man who does not have a wife is left without joy, without blessing, without goodness,”[76] but the controlling obligation is procreation.[77] Marriages whose sole purpose is companionship are recommended for those that already have been blessed with children. The verse cannot be used to redefine what marriage is.

The Torah places these stories at the very beginning to tell us that this is what is most essential about life. We must consciously and thoughtfully build this world that God has given us. Our parents, through an act of kindness, give us life, which we do nothing to earn. In this way, they imitate God who created the world and life therein. Unlike the modern notion that believes that life is primarily about self-fulfillment, the Torah unequivocally states that we are bound to perpetuate life and build civilization, to pay it forward. 

Fighting Promiscuity

While the family is the vehicle for building civilization, getting it right requires overcoming many challenges, from sexual desire to jealousy. Rabbi Sacks explains:

What made the traditional family remarkable, a work of high religious art, is what it brought together: sexual drive, physical desire, friendship, companionship, emotional kinship and love, the begetting of children and their protection and care, their early education and induction into an identity and a history. Seldom has any institution woven together so many different drives and desires, roles and responsibilities. 

Balancing these factors properly is incredibly difficult. It is for this reason that the Talmud states, “marriage is as difficult as the splitting of the Reed Sea.”[78] 

The recurring theme in Genesis is family and sexuality. This is more surprising than it initially appears. Maimonides emphasizes that Abraham’s unique accomplishment was his recognition of the monotheistic God.[79] Theological statements appear a handful of times in the book,[80] though no one is criticized for their idolatrous practices.[81] Yet Genesis contains sixteen stories on sexuality,[82] another four stories describe family breakdown among siblings, and three of our four foremothers suffer from infertility. It is a book about family function and dysfunction.

Halacha provides the family with the needed guidance and protection. This is evident from the second creation story, where the first emotion felt by Adam and Eve is the shame of their nakedness. Demonstrating the importance of modesty, it is God who creates the first set of clothing.[83] While Torah requires the teaching of its sexual ethic,[84] these discussions must be held with care,[85] geared to the right crowd,[86] in order to prevent unnecessary thoughts about sin. 

Other religions look to abolish or hide from carnal desire and pleasure. The secular sexual ethic revolves around avoiding personal harm and ensuring consent. Judaism, in contrast to both, seeks to sanctify sexuality. This requires protection and purity. With desire there is also vulnerability. When engaged in recklessly, sex destroys. In a relationship of love and commitment, it builds trust. Furthermore, sanctity can only be created with purity of mind and deed. The Torah therefore prohibits sexual acts even when there is consent and offers pleasure.

Halacha restricts certain activities not due to radical piety, but to promote marriage as essential and recognize its fragility. Judaism is on guard against promiscuity. Places of worship require the mechitzah as a physical barrier between the genders.[87] Not only is premarital sex forbidden, but so is sensual touch outside of marriage.[88] Pornography is forbidden, and the laws of yichud govern proper environments for interaction between the sexes. If this seems overregulated, just count the number of sexual scandals in any given year. The Talmud believes that this area of life requires greater regulation. 

That marriage is delicate and needs protection can be seen from the rise in the divorce rate over the last 100 years. The Talmud provides an important contrast when it states that divorce brings the Temple’s altar to tears, so to speak.[89] The sexual revolution may have felt freeing, but it also had detrimental consequences. In the US, 40% of children are born to single mothers. As numerous studies[90] have demonstrated, children, but especially boys, from single parent homes correlate with increased crime and other at-risk behavior. This is especially true when fathers are absent.[91] It is intact marriages that have the greatest impact on educational achievement and emotional health.

Rabbi Shalom Carmy explains that our “culture treats the family primarily as an arena for self-fulfillment and self-expression rather than first and foremost as the sphere dedicated to the education of future generations.”[92] The exact reasoning used by Justice Kennedy to redefine marriage has already reframed our approach to traditional marriage. This has led to increased promiscuity and the breakdown of the family. Ultimately, it can lead to civilization’s demise whether we like it or not. 

Forbidden Relations

While Judaism protects marriage from the allure of promiscuous behavior, it places a very strong emphasis on maintaining the proper structure of marriage. These forbidden relations are detailed in Leviticus 18. The primary motivation of these prohibitions is that they go against the vision articulated in Genesis. This is why the Torah introduces the arayot with “by the pursuit of which man shall live.”[93] On its own terms, the Torah believes that these forbidden relations are essential for promoting life itself. 

The independent procreative marriage is central to flourishing human civilization and these illicit relations actively undermine it. They are part of the small group of commandments that cannot be overridden by risk to one’s life,[94] since these commands are fundamental to a thriving society. No exceptions are allowed. Even going through the motions of kiddushin will not create the sanctity of marriage.[95]

The first section of forbidden relations (6-18) all revolve around too much family intertwining. Marriage requires independence from the home where one was raised, so relations with one’s sister, mother, granddaughter, etc. prevents “a man leav[ing] his father and mother.”[96] The next five verses pivot away from the intrafamily relations and focus on the family and procreation:

19) Do not come near a woman during her period of impure menstruation to uncover her nakedness.

20) Do not have carnal relations with your neighbor’s wife and defile yourself with her.

21) Do not allow any of your offspring to be offered up to Molech, and do not profane the name of your God: I am the LORD.

22) Do not lie with a male as one lies with a woman; it is an abhorrence.

23) Do not have carnal relations with any beast and defile yourself thereby; and let no woman lend herself to a beast to mate with it; it is perversion.

The middle verse prohibiting Molech child sacrifice is curiously placed since it has nothing to do with sexuality. It, however, anchors the other four prohibitions. From what I can tell, child sacrifice is the only sin that the Torah describes as both “abhorrent” and “hated by God.”[97] Here it is also described as a chilul HaShem. Killing one’s child is literally the worst thing that a person can do. God created the world to increase life, and instead a parent takes the life that they created and snuffs it out.[98] 

These verses emphasize that the essence of marriage is to properly raise children. Niddah focuses our attention on the procreative component of marriage, while infidelity is not just about promiscuity, but the way that it destroys the family and damages a child’s perception of the world. Molech fixes the procreative message in place. Homosexuality is the next prohibition listed because it is by nature categorically unable to reproduce.

This vision for marriage and many of the prohibitions which support it apply to non-Jews, including homosexual intercourse.[99] Not only is the Talmud aware of homosexual desire, it even recognizes that two males may be in a committed relationship with each other.[100] Nonetheless, though gentiles practiced homosexuality, the Talmud praises their societies that “do not write a (ketubah) marriage contract for a wedding between two males.”[101] Here the Talmud reaches the opposite conclusion from Justice Kennedy. For Kennedy, sincere commitment legitimizes homosexual marriage. The Talmud describes the marriage license with the word ketubah which represents marital devotion and protection, nonetheless, it considers such a union to be a further step in the wrong direction. To put it differently, when the individual’s fulfillment conflicts with larger societal needs, Kennedy chooses the individual, while the Talmud prioritizes the perpetuation of civilization.

The goal of creating a world teeming with life and building society applies to all of humanity. The institution of marriage must be protected for the sake of civilization itself.

New Families?

The above would suffice to prohibit any redefinition of marriage and the family given the categorical nature of Halacha.[102] 

Orthodox LGBTQ advocates may agree with most of the above. They could believe in the centrality of the family and the union of procreation and education for perpetuating civilization. They will therefore contend that now that gay couples have the right to legally marry, they also want to build these types of families. They will contend that recent developments in reproductive technology allow for using both partners’ genetic material to create a fetus. They will want to raise such a child with love and dedication.

As mentioned above, social science has always highlighted that a mother and father are critical to a child’s development. Historically, they have played central and complementary roles in raising children. It is important for a child to see difference and unity together.[103] DNA from both male parents does not excuse the erasure of the mother. A marriage that is focused on child-raising would be deeply hesitant to put children in an environment where they may not be formed properly. It is tragic when a child grows up without one or both biological parents. Intentionally raising children in an experimental environment is reckless. 

At a civilizational level, such a family undermines one of the core purposes of the family unit, which is to be an independent source of moral authority and education. Governments cannot be relied upon to provide proper moral instruction. Sometimes, they teach immorality. The Torah, therefore, places the primary responsibility for instruction, especially in the realm of morality, on parents, not the government. Parents are commanded to “Take to heart these instructions with which I charge you this day. [and] Impress them upon your children.”[104] Though Passover is a holiday with a national pilgrimage to Jerusalem, the Seder and its reliving of our history occurs in family units. Yehoshua ben Gamla’s public education initiative was motivated by the increase of orphans, not a new ideal of government education.[105] Throughout our history, Jewish families procreated and endured despite governmental persecution, “But the more they were oppressed, the more they increased.”[106]

It is not just that the Jewish family persevered through persecution, the Jewish family was the bulwark against government tyranny. Israel’s call against the repressive Rehoboam is “To your tents, O Israel!”[107] Natan Sharansky describes[108] how his father explained the true nature of the USSR to him in the privacy of their home

While this might seem a bit overblown in the current American context, there are numerous indicators that Western governments are encroaching on parental rights. Of course, the government should protect against abuse whether active or passive, since families can also be places of immorality. The government mindset should be hands off except in extreme circumstances, but the opposite is happening.

In the US, some mainstream public intellectuals[109] assert that the government has primary responsibility for raising children, not parents. This is also the mentality behind the attacks on homeschooling from governmental officials[110] and academics.[111]

Even governments that acknowledge parental rights are quick to remind parents about the “proper” way to raise their children. Child Protective Services has removed children from their parents for simply allowing them to play in a park[112] without parental supervision. The children were not doing anything wrong or being harmed, but CPS claimed that this constituted “neglect.” New York City is subjecting Haredi day schools to increased academic scrutiny even though close to 150 NYC public schools are miserably failing[113] and provide less of an education than their Haredi counterparts.

Specifically when it comes to sex education, some US governments are enshrining LGBTQ education[114] into the curriculum, and sometimes parents  are unable to opt-out.[115] Even if parents theoretically do have such an off-ramp, the celebration of gender transition ceremonies[116] during regular class time becomes a backdoor for public schools to promote these values anyway. In the UK, Jewish schools are required[117] to teach the government’s view of LGBTQ identity. Recently, President Biden’s nominee for Assistant Secretary of Health refused to answer whether the government would override parents who refused to give their gender-dysphoric children puberty blockers. When marriage and gender become redefined, there is a pattern of governments inserting themselves to correct the “backwards” morals of the parents.

In more authoritarian regimes like China, the government dictates to parents the number of children they can have. That is why the dystopian novel Brave New World opens with the government’s manufacturing of children. There are no parents and the government has complete control. 

State management of the family is not a recent phenomenon. It is as old as the Bible itself. Babel and Egypt want to control procreation. Numerous rulers in the Bible believe that they were entitled to other people’s spouses and children. State entitlement to family partially caused the Flood when the powerful “took wives from among those that pleased them,”[118] and was part of David’s sin with Batsheba, as well as Solomon’s overworking the population, where for decades all men “would spend one month in the Lebanon and two months at home”[119] building Solomon’s palaces and cities. This is exactly what Samuel predicts when he warns against a king because:

He will take your sons and appoint them as his charioteers and horsemen, and they will serve as outrunners for his chariots. He will appoint them as his chiefs of thousands and of fifties; or they will have to plow his fields, reap his harvest, and make his weapons and the equipment for his chariots. He will take your daughters as perfumers, cooks, and bakers.[120]

In a sense, government intrusion on the family is the expected state of affairs. To combat against this, the Torah sets up parents as an independent source of authority over their children.  Genesis emphasizes the family and downplays governments. The Talmud describes that a child is created by husband, wife, and God.[121] Heterosexual reproduction is supposed to be a natural product of marital intimacy. The state is not required, and it needs no outside validation. The Jewish family can continue with a government or without one. 

No homosexual couple, however, is able to reproduce on its own. Lesbian couples need a sperm donor and gay couples need an ovum and uterus. Even if the child’s genetic material matches both parents by swapping the donor’s nuclear DNA with the other spouse’s, every homosexual couple must still involve another person and a lab. 

Therefore, homosexual procreation can only occur with the government’s approval and rulings. It licenses fertility treatment centers, approves treatments, and most importantly, allows essential biological donors or gestational hosts to relinquish parental rights and obligations. It then creates parental rights and obligations to a donor that contributes less than 50% of the biological material.  

The laws of adoption offer an important parallel. Parents that adopt perform necessary and heroic work.[122] Even as their relationship with the child deepens, it is the state that grants and ensures their parental rights. When a biological parent makes a subsequent claim, it is the court that grants and revokes rights.

Individuals would not donate their biological materials if they could be held financially responsible later, and family life would be complicated if a donor could subsequently make a parental claim. Homosexual fertility depends on the government. This gives the state a legitimate claim to the moral education of the child.

The vast majority of Jewish poskim support IVF, surrogacy, and other fertility treatments for heterosexual couples struggling with infertility. This is what distinguishes fertility treatments in heterosexual marriage from the homosexual one. As an institution, heterosexual marriage can perpetuate on its own. That is the default. A tiny percentage of heterosexual marriages require IVF fertility treatments with donor DNA or surrogacy to procreate. In contrast, no homosexual union can procreate without the biological donation of a third party, who must be legally removed from the picture. There is no possibility otherwise. This makes the role of the government essential to their fertility and works to create a new reality.

The traditional family structure is the only one that can be its own source of moral authority.

The Realities of Life

While the  Torah’s vision for family and civilization is a beautiful one, life is much messier and uneven. Too many people are born unable to fulfill these expectations. The most ancient, is of course, female barrenness. The Bible has numerous stories of women suffering for years as they desperately want to have children. Though we should note that half of infertility is attributed to factors within the male (and the numbers are rising[123]). The Talmud discusses individuals born with unclear or dual genitalia. Many people do not have the needed psychological fortitude to sustain a marriage and raise children. Though a child requires a father and mother, some people die young, leaving orphans. Modern medicine has solved some of these, but not all.

In the same mysterious way, God creates some human beings with same sex attraction or gender dysphoria. When one confronts these anguish-filled realities, the theological response to is to allow ourselves to be overtaken by God’s inscrutability based on Ecclesiastes “Just as you do not know how the life-breath passes into the limbs within the womb of the pregnant woman, so you cannot foresee the actions of God, who causes all things to happen” (11:5). We are sometimes forced to acknowledge that while humans can achieve great heights, we are quite limited as well. Both biology and Halacha impose painful limitations. The life that God gave us has incalculable and unexplainable suffering. Instead, we cling to the principle that “the judgments of the LORD are true, they are righteous altogether.”[124] 

Theologically we cannot explain these difficult aspects of life. Nonetheless, Halacha provides guidance how to move forward. 

The case of the uncircumcised hemophiliac male[125] provides a model. Brit Milah is so central to Jewish identity, that failure to do so results in the Divine punishment of karet, spiritual excision. It is one of two positive commands where passive non-compliance results in this punishment. Yet, God creates some children with hemophilia, which can cause death to the circumcised newborn. Recognizing this, the Talmud states that if two older brothers die as a result of circumcision, then the third born son is prohibited from being circumcised until it is determined that he can do so safely.[126] Since his non-compliance is not his fault in any way it does not result in karet. He has an exemption of ones.

At the same time, his participation in Jewish life has restrictions. He is not allowed to eat the paschal lamb,[127] and if he is a priest, he may not eat terumah[128] or work in the Beit Hamikdash.[129] Not being able to participate in important and very public events is undoubtedly a source of deep shame.

This template says as follows:

  1. Halacha recognizes that God creates some humans in ways that prevent them from meeting essential Torah obligations.
  2. Such individuals should never be demeaned or punished for their realities, since it is beyond their control.
  3. At the same time, some opportunities will not be open to them.
  4. In all other aspects they can be contributing members of society.

In regard to marriage, Rabbi Moses Isserles (Rama) states that “nowadays, [Beit Din] does not compel regarding [marriage and procreation]… so long as the marriage is not prohibited.”[130]

The first part of Rama’s ruling concerns someone who is passively not living up to expectations. He asserts that privacy and space are the appropriate way for each person to chart their path in the area of marriage. The community is not supposed to pry or coerce, and they are expected to accommodate. Rama also realizes that since marriage requires incredible dedication, it must be done volitionally. Communal coercion will likely result in the demise of the marriage and greater human suffering.

The second part of Rama’s ruling is that the community should not validate public violations of Halacha. All communities have standards of behavior for membership in that community. Religious institutions are under no obligation to accept all people as they are. Overtly violating Halacha communicates a disregard for the community’s defining characteristics. Communal acceptance would unwittingly impart the message that such behaviors are legitimate.

There is a middle area that the Rama does not discuss, which is private violations of Halacha. Here, a less charged example can serve as a parallel for policy. Namely, Sabbath violators who join Orthodox shuls. Many Orthodox synagogues close their parking lots for the Sabbath. Some people still drive to shul; they just park off grounds and out of sight. These individuals become members and are called to the Torah. No one investigates each member as to who does what. These people violate serious Biblical prohibitions, but they publicly acknowledge the ideal and respect it. 

The attempt to keep violation of the law as a private matter allows one to be part of the larger community. By keeping the communal standards supreme, the community accepts him as well.

Orthodox communities have found ways to enable those that are irreligious or have committed sins of a sexual nature to be part of the community. In essence, like the example of Sabbath observance above, the community should set expectations and not validate sin. It should similarly extend the same considerations to LGBTQ members. Critically, the balance of these factors will be different for each community depending on its makeup, standards, and history.

One more point must be mentioned. There are certainly some people who are born with no heterosexual attraction. The Gallup statistics,[131] however, show that reality is dynamic. While 1.8% of GenXers, identified as bisexual, 5.1% of Millennials did. This then more than doubled to 11.5% of Generation Z.[132] If all categories of LGBTQ can grow from generation to generation, there must be a variable that leads to its rise, and conversely, we have the ability to make it smaller

Conclusion

Many Orthodox LGBTQ individuals are filled with pain, self-doubt, loneliness, and experience consuming depression. Like the Biblical Chana, they have “depressed souls.” Learning from Eli, the Jewish community should not make wild accusations that misunderstand motives and actions. It should also not offer the false comforts of Elkanah, who attempted to cheer up the depressed Chana with “Why are you so sad? Am I not more devoted to you than ten sons?”[133] Some pain can never be solved with words or changing the goals.

We are charged with alleviating pain and improving life. Both sides claim that these are their goals. Figuring out the best path forward requires the Jewish community to be fully engaged on this issue, as difficult as it is. Over the past decade rabbinic leaders have become quiet which has allowed on the ground realities to dictate policies. This is a mistake. Decisions were made reactively instead of proactively.

The next few years will see an increase in some difficult questions about acceptance and exclusion. While it would be easier to draw a distinction between public and private, many homosexual couples insist on being themselves at public events. Transgender Jews will want to sit in a specific section of shul and have a bar or bat mitzvah. There will even be questions of conversion when a gay couple uses a non-Jewish egg donor and surrogate.[134]

Jewish leaders and institutions have a very difficult balance to maintain, maybe even an impossible one. A rigid policy will exclude too many, while an open inclusion policy communicates a lack of importance about the Torah’s core beliefs. Our children’s view of marriage and family could be significantly harmed, while an unbending approach will give the message that Judaism is cruel.

I do not have the answers to these questions. If we believe that Torah has something worthy to say about the life well lived, then it must be our guide even when it is difficult to do so. It is incumbent on us to grapple and struggle.

At the same time, our community must recapture the Bible and Talmud’s deep understanding of the individual and the family. 

We should all be given the strength to properly uphold our covenant.

 

Rabbi Rafi Eis is the Executive Director of the Herzl Institute in Jerusalem and has been a teacher for 16 years.

 

The prior entry in this symposium is here: link

The next entry is scheduled for Sunday, April 18, 9:30pm EDT


Endnotes:

[1] Lehrman, Nathaniel S. “Homosexuality: A Political Mask for Promiscuity: A Psychiatrist Reviews the Data,” Tradition, (Spring 2000) 34:1. He forcefully advocates for this position. This essay will be referenced below. In secular society, homosexuality was stigmatized as well, see Seinfeld 03×01 as an example.

[2] Rapoport, R. C. (2003). Judaism and homosexuality: An authentic orthodox view. Elstree, England: Vallentine Mitchell.

[3] Helfgot, N. “Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community,” July 28, 2010. Retrieved March 11, 2021, from Blogspot.com website: https://statementofprinciplesnya.blogspot.com/

[4] point #11.

[5] Rabbinical Council of America. (2016, November 29). 2016 resolution: Principled and pastoral reflections on sanctity and sexuality. Retrieved March 11, 2021, from Rabbis.org website: https://rabbis.org/2016-resolution-principled-and-pastoral-reflections-on-sanctity-and-sexuality/

[6] Lehrman. Ibid.

[7] Communications. Tradition, (Winter 2000) 34:4.

[8] Stern, Marc D. “Gay Rights and Orthodox Response,” Tradition, (Spring 2004) 38:1.

[9] Cohen, Uri. “Review Essay: Relating to Orthodox Homosexuals – The Case for Compassion,” Tradition, (Fall 2007) 40:3.

[10] Various. “After Obergefell: A First Things Symposium: Various.” First Things, www.firstthings.com/web-exclusives/2015/06/after-obergefell-a-first-things-symposium.

[11] Yevamot 79a, Beitzah 32b

[12] Shabbat 133b, Maimonides, Laws of Human Dispositions 1:6

[13] Commandment 498.

[14] Mishna Avot 5:10.

[15] Mishna Avot 1:17.

[16] Beitzah 32b

[17] Mishneh Torah, Laws of Charity, 10:7–14.

[18] Yalkut Shimoni, I Samuel, 121.

[19] II Samuel 19:6-8.

[20] Mlotek, Avram. Facebook post on February 18, 2020. https://www.facebook.com/photo.php?fbid=2653283331608931&set=a.1439840516286558&type=3&theater

[21] Koller, Aaron J. “On Halakha and LGBT.” The YU Observer, 10 Sept. 2019, yuobserver.org/2019/09/on-halakha-and-lgbt/.

[22] Zechariah 7:9

[23] Fostering an Inclusive Community. Yeshiva University, 2020. https://36yrz82f039s43dlq3eidz72-wpengine.netdna-ssl.com/wp-content/uploads/2020/09/Fostering-an-Inclusive-Community__.pdf

[24] Dreyfus, Hannah. “LGBTQ Students File Complaint Against Yeshiva U.” The New York Jewish Week, 18 Feb. 2020, https://jewishweek.timesofisrael.com/battle-for-gay-recognition-intensifying-at-yeshiva-u/

[25] Chernigoff , Brian. “On Halakha and LGBT: A Response to Professor Koller.” The Commentator, 13 Sept. 2019, yucommentator.org/2019/09/on-halakha-and-lgbt-a-response-to-professor-koller/.

[26] Klapper, Aryeh. “Chok, Mishpat and Obergefell.” Center for Modern Torah Leadership, 5 July 2015, moderntoraleadership.wordpress.com/2015/07/03/chok-mishpat-and-obergefell/comment-page-1/.

[27] Yoma 67b . includes the arayot among the Biblical prohibitions that “even had they not been written, it would have been logical that they be written.” This is even though other nations, like Egypt, institutionalized certain arayot relationships.

[28] From the prayers of Yom Kippur.

[29] Deuteronomy 4:6

[30] Proverbs 3: 17-18

[31] Proverbs 3: 19

[32] Many have quoted these verses as a way to uproot Biblical commands, like the prohibition against homosexuality. Human judgement of pleasantness can sometimes be confusing and is based on one’s underlying vision of life. As Proverbs makes clear, however, the human judgement that God’s divinely revealed commands are “pleasant” and increase life is correct because Torah aligns with the world that God created. It is He who created the world and gave us His Torah, and He intends them to act in unison. This then demonstrates its pleasantness. Appealing to human pleasantness based on another ethical system creates all sorts of conflicts with the Torah’s commands. When the extent of a command is unclear, a limiting principle can be an appeal to the Torah’s ultimate aims of bringing good to humans. Such an appeal is actually based on the human experience living the Torah life. An appeal to human pleasantness cannot, however, uproot a command or serve as an independent motivation to limit a command.

[33] Soloveitchik, R. J. B. (2002). Family Redeemed: Essays on Family Relationships (Shatz, David & D. J. B. Wolowelsky, Eds.). Ktav Publishing House. p.4.

[34] From the daily evening prayers.

[35] Soloveitchik, J. B. (1986). The Halakhic Mind: An Essay on Jewish Tradition and Modern Thought. New York, NY: Free Press. p. 101.

[36] Planned Parenthood of Southeastern Pennsylvania, et al., Petitioners, v. Robert P. Casey, et al., etc. Robert P. Casey, Et Al., Etc., Petitioners, v. Planned Parenthood of Southeastern Pennsylvania, et al.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/supremecourt/text/505/833.

[37] Judaism differs from the Catholic view regarding the beginning of life. While Halacha does not allow for elective abortion, various halachic decisors have permitted abortions in a range of difficult circumstances.

[38] “Obergefell v. Hodges.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/supremecourt/text/14-556.

[39] In this sense, the earlier attempts to explain the prohibition of homosexuality as promiscuous, created a false permission for sincerely committed same sex couples. There are some legitimate studies that correlate the homosexual lifestyle with promiscuity. In the time since that research, general society has gotten more promiscuous as well, so it is unclear if that difference still holds true.

[40] Genesis 1:27

[41] ibid. 28.

[42] ibid. 11:3. Rough stones have limited height while hewn stone is a labor-intensive process. Brick technology allows for quickly building tall buildings.

[43] ibid. 4.

[44] ibid.

[45] ibid. 8.

[46] Shulchan Aruch, Even HaEzer 5:11-12.

[47] Total Fertility Rate 2021, worldpopulationreview.com/country-rankings/total-fertility-rate.

[48] Even secular Israelis have an above replacement birth rate, Maor, Dafna. “With Fertility Rising, Israel Is Spared a Demographic Time Bomb.” Haaretz, 29 May 2018, www.haaretz.com/israel-news/with-fertility-rising-israel-is-spared-a-demographic-time-bomb-1.6131135.

[49] Isaiah 45:18

[50] Mishna Eduyot 1:13

[51] Yevamot 63b

[52] Genesis 38:9-10.

[53] John, Tara. “Meet Tracey Crouch, Britain’s Minister for Loneliness.” Time, Time, 25 Apr. 2018, time.com/5248016/tracey-crouch-uk-loneliness-minister/.

[54] Kiddushin 2b.

[55] Genesis 2:23

[56] Ibid. 2:24.

[57] Numbers 36:6. This verse is stated in reference to the daughters of Zelophehad, who were limited to marrying men within their tribe. The Talmud celebrates the moment that tribes can intermarry (Taanit 30b). This ideal becomes codified in Halacha with the requirement of the woman’s agreement to the marriage as per Kiddushin 2b. A coerced marriage is not valid, as per Bava Batra 48b. See Shulchan Aruch Even HaEzer 41:1.

[58] Genesis 24:58, 67

[59] Ibid. 2:24.

[60] Yaakov’s father-in-law and nemesis Lavan claims “The daughters are my daughters, the children are my children” (Genesis 31:43) because he viewed children as his extension.

[61] Exodus 21:10.

[62] Deuteronomy 24:5.

[63] Yevamot 6b, Genesis 24:67, 29:18. Love can be both a feeling and a verb.

[64] Genesis 2:24.

[65] ibid. 2:15.

[66] A similar concept is found regarding conquering the land of Israel. While we are commanded to do so, it will proceed at the slower pace of settlement rather than the quick pace of conquest (Exodus 23: 29-30).

[67] Two tangential points are worth mentioning. First, Rousseau sired, but abandoned all his children. He never experienced raising children. He never tested his theories out as a father or teacher. Two, much of contemporary education theory, like increased play and less homework, stems from this Rousseau-ian idea that society corrupts the natural goodness of man.

[68] Genesis 8:21.

[69] Radak, Genesis 8:21, s.v. ki.

[70] Genesis 6:1.

[71] Genesis 18:19.

[72] See Yevamot 12b, Niddah 9a, and Shu”t Bnei Banim 1:30.

[73] Shulchan Aruch, Even HaEzer, 1:8

[74] Sacks, Jonathan. “‘The Love That Brings New Life into the World’ – Rabbi Sacks on the Institution of Marriage.” Rabbi Sacks, 26 May 2017, rabbisacks.org/love-brings-new-life-world-rabbi-sacks-institution-marriage/.

[75] Shulchan Aruch, Even HaEzer, 1:1

[76] Yevamot 62b

[77] Shulchan Aruch, Even HaEzer, 1:1, 3, 8. See the formulation of Tur here as well as the comment of the Derishah.

[78] Sotah 2a. For an elaboration on this principle, see Bereshit Rabbah 68.

[79] Mishneh Torah, Foreign Worship and Customs of the Nations 1:3

[80] A theme of Exodus is monotheism.

[81] See Genesis 35:2.

[82] Adam and Eve’s shame of their nakedness (3:7), the kidnapping of women prior to the Flood (6:2) this is the only specific sin we are told about the people of that time, Noah’s drunken exposure (9:21), the kidnapping of Sarai in Egypt (12:15), Brit Milah (17:10-11), homosexual gangrape in Sodom (19:5) this is the only specific sin we are told about Sodom, Lot impregnates his daughters (19:31-38), the kidnaping of Sarah in Gerar (20:2), Rebecca is praised for her virtue (24:16), the almost kidnapping of Rebecca (26:7, 10), Yaakov’s unintentional marriage of Leah (29:23-26), the kidnap and rape of Dina (34:2), Reuven and Bilhah (35:22), Onan wasting seed (38:9-10), Yehuda and Tamar (38:15-18), Joseph and Potiphar’s wife (39:7- 12).

[83] Genesis 3:21.

[84] Berachot 62a

[85] Ketubot 8b

[86] Mishna Chagigah 2:1 limits the audience to three people. While a number of poskim have prioritized the desperate need to teach Torah to the masses and have therefore allowed larger crowd sizes, the principles of modesty protecting sexuality still apply.

[87] Sukkah 51b- 52a.

[88] Shulchan Aruch, Even HaEzer, 21

[89] Gittin 90b.

[90] Kay S. Hymowitz. “Boy Trouble.” City Journal, 21 June 2019, www.city-journal.org/html/boy-trouble-13615.html.

[91] Eberstadt, Mary. “The Fury of 
the Fatherless: Mary Eberstadt.” First Things, 1 Dec. 2020, www.firstthings.com/article/2020/12/the-fury-of-the-fatherles.

[92] Carmy, Shalom. “After Obergefell: A First Things Symposium: Various.” First Things, www.firstthings.com/web-exclusives/2015/06/after-obergefell-a-first-things-symposium.

[93] Leviticus 18:5. It is this verse that teaches us that saving a life overrides almost all mitzvot, except for three.

[94] Sanhedrin 74a. The story in Sanhedrin 75a brings this point home.

[95] Kiddushin 67b, Shulchan Aruch Even HaEzer 44:6. Niddah which is based on a temporary reality as opposed to a relationship, is the exception to these consequences.

[96] See Maimonides, Laws of Kings and their Wars 9:5.

[97] Deuteronomy 12:31.

[98] Ezekiel 20 initially describes God’s commands as increasing life (20: 11, 13, 21). After Israel continually disobeys God, His anger manifests itself in exile and allows the people to adopt perverted religious ideas that bring death, like child sacrifice (20: 24-26).

[99] Mishneh Torah, Laws of Kings and their Wars 9:5

[100] See Rashi, Chullin 92b, s.v. she’ein.

[101] Chullin 92b.

[102] See Maimonides, Guide for the Perplexed 3:34, who states that the Torah’s general approach is to command and prohibit that which is best for most people, and there will be exceptions.

[103] Anderson, Ryan. “Marriage: What It Is, Why It Matters, and the Consequences of Redefining It.” The Heritage Foundation, www.heritage.org/marriage-and-family/report/marriage-what-it-why-it-matters-and-the-consequences-redefining-it.]

[104] Deuteronomy 6:6-7.

[105] Bava Batra 21a.

[106] Exodus 1:12.

[107] I Kings 12:16.

[108] Sharansky, Natan. “The Doublethinkers.” Tablet Magazine, 11 Feb. 2021, www.tabletmag.com/sections/arts-letters/articles/natan-sharansky-doublethink.

[109] “MSNBC: We Have to Break Through This Idea ‘That Kids Belong to Their Parents’.” CNSNews.com, www.cnsnews.com/news/article/msnbc-we-have-break-through-idea-kids-belong-their-parents.

[110] Ellis, Jenna. “California Overreacts and Presumes Every Homeschooling Parent Is a Child Abuser.” Washington Examiner, 31 Jan. 2018, www.washingtonexaminer.com/california-overreacts-and-presumes-every-homeschooling-parent-is-a-child-abuser.

[111] O’Donnell, Erin. “The Risks of Homeschooling.” Harvard Magazine, 14 July 2020, harvardmagazine.com/2020/05/right-now-risks-homeschooling.

[112] Wallace, Kelly. “’Free-Range’ Parents Face Neglect Investigation.” CNN, Cable News Network, 21 Jan. 2015, edition.cnn.com/2015/01/20/living/feat-md-free-range-parents-under-attack/index.html.

[113] Algar, Selim. “Over 140 NYC Schools Have Grades with 90 Percent State Exam Failure Rate.” New York Post, New York Post, 18 Dec. 2019, nypost.com/2019/12/17/over-140-nyc-schools-have-grades-with-90-percent-state-exam-failure-rate/.

[114] Shalby, Colleen. “Controversial Sex Education Framework for California Approved despite Protest.” Los Angeles Times, Los Angeles Times, 10 May 2019, www.latimes.com/local/lanow/la-me-sex-education-california-20190510-story.html.

[115] Cleveland, Margot. “The Transgender Agenda Hits Kindergarten.” National Review, 5 Sept. 2017, www.nationalreview.com/2017/09/transgender-agenda-schools-kindergarten-california-opt-in-opt-out-state-laws-prevent/.

[116] “Transgender Reveal in Kindergarten Class Leaves Parents Feeling ‘Betrayed.’” CBS News, CBS Interactive, 1 June 2018, www.cbsnews.com/news/transgender-reveal-kindergarten-class-rocklin-academy-parents-upset/.

[117] Rocker, Simon. “Ofsted Keeps Up Pressure on Charedi Schools to Teach about Same-Sex Relationships.” The Jewish Chronicle, 26 Jan. 2021, www.thejc.com/education/education-news/ofsted-keeps-up-pressure-on-charedi-schools-to-teach-about-same-sex-relationships-1.511133.

[118] Genesis 6:2. Ahasuerus in Esther 2:2-4 acts similarly.

[119] I Kings 5:28.

[120] I Samuel 8:11-13.

[121] Niddah 31a.

[122] Ketuvot 50a. Megillah 13a equates adoption as if one gave birth to them. Unlike Roman law however, the adopted child never gets inheritance rights. They could be granted with a will.

[123] Fetters, Ashley. “Sperm Counts Continue to Fall.” The Atlantic, Atlantic Media Company, 12 Oct. 2018, www.theatlantic.com/family/archive/2018/10/sperm-counts-continue-to-fall/572794/.

[124] Psalms 19:10.

[125] See Dr. Daniel Eisenberg’s “Hemophilia and Circumcision”, https://www.jewishmedicalethics.com/uploads/4/6/4/0/46409757/_eisenberg_schlesinger_hemophilia_and_circumcision_as_published_in_jme_without_irp.pdf

[126] Yevamot 64b.

[127] Exodus 12:48.

[128] Yevamot 70a.

[129] Zevachim 22b. This is the opinion of Rashi and all other Biblical and Talmudic commentators. Rabbenu Tam (Zevachim 22b s.v. Arel) states that the uncircumcised hemophiliac is not excluded from any of these commandments, and defines arel as one who is afraid of circumcision.

[130] Shulchan Aruch, Even HaEzer, 1:3.

[131] Jones, Jeffrey M. “LGBT Identification Rises to 5.6% in Latest U.S. Estimate.” Gallup.com, Gallup, 26 Feb. 2021, news.gallup.com/poll/329708/lgbt-identification-rises-latest-estimate.aspx.

[132] The British polling firm Ipsos MORI “Sexual Orientation and Attitudes to LGBTQ in Britain.” Ipsos MORI, www.ipsos.com/ipsos-mori/en-uk/sexual-orientation-and-attitudes-lgbtq-britain found similar generational changes but different rates within each generation.

[133] I Samuel 1:8.

[134] See Bick, Ezra. “Ovum Donations: A Rabbinic Conceptual Model of Maternity,” Tradition, (Fall 1993) 28:1.

About Rafi Eis

Rabbi Rafi Eis is the Executive Director of the Herzl Institute in Jerusalem and has been a teacher for 16 years.

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