"Gay Orthodoxy Revisited: The Constrained Halakhic Solutions" by Rabbi Steve Greenberg

Tikkun Magazine, October 2004 by Steve Greenberg                                                                          

In the fall of 1993, an article entitled, "Gayness and God: Wrestlings of a Gay Orthodox Rabbi," appeared in TIKKUN under the pseudonym, "Rabbi Yaakov Levado." I plucked that name out of the biblical account of Jacob's return to Canaan.

Jacob is returning from Ur to face his brother Esau. He crosses back over the Yabbok river and there, alone and defenseless, encounters a stranger who wrestles with him until the morning light. At the end of this dark confrontation Jacob pins his attacker and makes an unusual demand: I will not let you go until you bless me! 

The blessing that Jacob receives at the break of dawn is one of paradoxical power. His mysterious assailant calls him by the name Israel, which he says means "he who has wrestled with God and men and has survived." Since my early venture out of the closet under the cloak of a pseudonym, I have been "wrestling with God and men." Ten years later, a book by that name is finally finished. Wrestling with God and Men: Homosexuality in the Jewish Tradition was published by the University of Wisconsin Press this past spring.

While much has changed in my life and in the world since 1993, the Orthodox community is just beginning to seriously address the question of gay and lesbian inclusion. The most important catalyst for change has been the documentary film, Trembling Before G-d, released in the fall of 2001, in which seven characters struggle with their homosexuality and their love of Jewish tradition. I was among the rabbis interviewed in the film and once the film was released, I accompanied the filmmaker, Sandi Simcha DuBowski, to hundreds of post-screening dialogues across North America and around the globe.

The film did for the Orthodox community what the throngs of out and proud gay people have been doing in the larger society. It told our stories to people who had never heard them, and it told them in a familiar way. It articulated not only the pain of its exiled subjects, but also their love of the tradition and their deep faith in God despite it all. Wisely, the film resisted the temptation to provide any answers to the dilemma that it posed, and in doing so lodged a profoundly disturbing question in the hearts and minds of many.

Nonetheless, the film flirts with despair in its refusal to provide any halakhic resolution. Without a way to put together a socially and religiously integrated life, the subjects of the film can seem naive if not downright foolish for their persistence. Why stay if the system will never respond, much less change? How does one ally with the tradition and not become a participant in one's own degradation? Four years before work on the film had begun, these same two questions gnawed at my soul and pressed me to begin thinking and writing.

In the book I offer two distinct sorts of resolutions. The first is a midrashic reading of the condemning text in Leviticus 18:22, "And with a male you shall not lie the lyings of a woman, it is an abomination." Basing my interpretation upon rabbinic traditions I suggest that this verse in Leviticus ought to be read in a way that prohibits sex used as a tool of domination and humiliation. I develop and support this rereading of Leviticus in order to demonstrate that it is not the biblical verse in Leviticus, per se, that stands in the way of sanctioning a life of intimacy and companionship for gay people. We might be quite vigilant in our fulfillment of the Torah by abominating the use of sex to abuse, debase, or humiliate and still celebrate the love between two men or two women.

However, having demonstrated that such a traditionally based yet permissive reading is possible, I then admit that for the foreseeable future, few in the Orthodox community will be willing to accept such a radical departure from the normative code. If I intended in my writing to provide gay Orthodox Jews with some realistic hope for inclusion, a midrashic rereading of Leviticus would not be sufficient.

In the latter part of the book I accept the possibility that even if the law were to remain unchanged, its application could still be reconsidered. Increasingly, this approach is finding appeal in Orthodox settings as people struggle to balance respect for the millennial tradition alongside real care and concern for lesbian and gay individuals who want to remain inside the community.

Presently there are two Orthodox responses to homosexuality offered by halakhic authorities that could ground policies of welcome for gay and lesbian members. The two solutions are similar in strategy though different in emphasis. While the first has been around for some time it has not really been given broad communal attention until recently. The second is just beginning to be considered by rabbis and congregants. They are both thoughtful attempts to transform what is still considered by many to be an abomination into a simple and somewhat ordinary human failure. These halakhic arguments may be able to slowly nudge communities toward understanding and tolerance, albeit within rather constrained frameworks.

O'ness-Duress

The first of these halakhic resolutions employs the legal principle of o'ness rahmana patrei (literally: the Merciful One absolves anyone who acts under duress). Individuals under duress are not considered culpable for their actions. According to the law, no person can be held responsible for an act over which she or he has no control. Deprived of free will by a psychological condition, gay people could be supported to do the best that was in their power to do.

Rabbi Norman Lamm, the former President of Yeshiva University, wrote an article on homosexuality in 1974 for the Encyclopedia Judaica Year Book in which he proposed the idea that at least some homosexuals might be considered "under duress." Since the Talmud considers freedom of will to be a prerequisite for legal and moral culpability, homosexuals under the "duress" of their sexual orientation would be exonerated. The act would remain an abomination, but individuals afflicted with homosexual desire would garner extraordinary pastoral compassion and communal tolerance.

Lamm excluded what he termed "ideological" homosexuals from his ruling. Gay people "who assert the legitimacy and validity of homosexuality as an alternative to heterosexuality" would not be deemed "under duress" according to Lamm. Only those homosexuals who had attempted to overcome their desires and failed and who "readily admit [homosexuality's] pathology could be considered under the 'duress' of a psychological condition." For Lamm, the defense of duress requires an acknowledgment of both the negativity of the sexual behavior and the pathology of the compulsion.

In 1993, in an article in the Jerusalem Post, Rabbi Shlomo Riskin, a prominent Modern Orthodox rabbi now heading a community in Efrat, Israel, suggested that an even broader application of the principle of o'nessmight be possible. While homosexuals are portrayed in a rather negative light in the beginning and end of the essay, in the middle of the piece Rabbi Riskin waxes passionate in their defense:

In a sense, the category of tinok shenishbah is a sociological application of a psychological principle.O'ness refers to a psychological condition of individuals that diminishes their agency and so their culpability; tinok shenishbah refers to a social condition that miseducates people, and so likewise diminishes their agency and culpability. O'ness treats gay people as psychologically deficient while tinok shenishbah treats gay people as uniquely vulnerable to a morally deficient society.

For some Orthodox gay people o'ness and tinok shenishbah are perfect ways to sustain the tradition as it has always been, while replacing hatred and fear with understanding and tolerance. For others, these solutions fall painfully short of providing an adequate solution to the dilemma. Orthodox gay people who have come out of the closet tend to feel that these characterizations of their experience simply do not ring true. They feel neither under duress nor captured by a gentile consciousness. They do not experience their sexual orientation as either a psychological illness or the result of libertine social values. Personally, I find myself both moved by these rabbinic attempts at compassion and also deeply troubled by them.

Rav Noah

My first encounter with conditional tolerance happened when I was in the last few months of my closeted existence. A gay friend asked a favor of me. He wanted to know how his Rav would respond to the issue of homosexuality. His Rav was Noah Weinberg, the founder and director of Aish HaTorah, a yeshivah for returnees to Orthodox Judaism. Since its beginnings in 1974 Aish has grown into an international enterprise, counting thirty branches worldwide with teachers conducting classes for business people and seminars for young seekers. From Aish International in Jerusalem, Rav Noah continues to run his local yeshiva along with his expanding franchises.

He is a rough and tumble man from Baltimore, Maryland, where his father and then his brother once headed the Ner Yisrael Yeshiva. Rav Noah's American ease, his football coach manner and his sense for the spiritual and psychological troubles of the baby boomers and their children have made Aish one of the most successful religious renewal efforts in North America and Israel.

Before I went to the meeting with Rav Noah I sent ahead the TIKKUN article, "Gayness and God," so that we would save time. Self protectively, I introduced myself as Rabbi Yaakov Levado.

The meeting began with Rav Noah's warm assurance that there was no way to know the weight of God's judgments. "We all sin. You, like everyone else, struggle with the Yetzer Hara (evil inclination). You win some, you lose some. You try to do the right thing, you fight it. That's all you can do. Do your best to fulfill the mitzvot (commandments). That's all God asks of you."

He did not attack or condemn. He compared a Jew who has gay sex to a Jew who violates the Sabbath. He had no taste for the vilification of either sinner. In comparison to other rabbis I had spoken to, Rav Noah was remarkably sympathetic. In the beginning of my journey I would have been very comforted and encouraged by him. However, being where I was in my journey, I was no longer so impressed.

"Rav Noah, if you read the article you understand that I do not fight it anymore, I embrace it. Gay desire, like straight desire, surely demands measures of discipline and control. But the desire and its fulfillment are no longer fundamentally sinful for me."

"Well, it's understandable," he replied. "Once you have accustomed yourself to live with a sinful behavior that you cannot overcome, it no longer feels like sin. Ok, so if you must sin, then do so. I just insist that you keep it to yourself, that you not turn sin into pride."

He was trying very hard to be as generous as he felt he could be. Still unsatisfied, I told him that I wanted a life of love and of sexual fulfillment that would somehow fit into a Jewish framework. He appeared agitated at my refusal of his kindness. "I want a community where I can have a partner, not a private obsession." No longer suppressing his frustration, Rav Noah insisted. "Look, you can't openly come into the shul with a lover. No, no! Let's say a single man masturbates to pornography—hardly an attractive quality, but he's single and he can't help himself. OK. So, that's where he is. But would you think it appropriate for him to announce it, to wear an 'I masturbate to pornography' button in Shul? Would you publicly claim to be a proud masturbator?"

I sighed. How could I explain to Rav Noah how his example so utterly misrepresented my life. I was angry at the reflection of my desire for a shared intimate life with a partner as shameful or pornographic. I wanted to ask him why my presence with a partner at a synagogue dinner would be any more sexually explicit then his presence with his wife? I calmed myself and thought for a moment how to communicate to him on this point. I asked him if I might speak a bit personally and he told me that I should speak my mind.

I asked him to imagine a circumstance. Suppose your wife goes to bed exhausted one night and the following morning she will have to wake up unusually early. When you get up she is still fast asleep, so you go to the kitchen and prepare her a cup of coffee just as she likes it. You set the cup down on the night table and then you wake her gently with kisses. Imagine how you might feel when she opens her eyes, when she reaches for your hand, when she sees the cup of coffee on the night table and smiles at you tenderly.

Without waiting for his response I said to him, "Imagine now being told that these ordinary expressions of love, intimacy, and affection were pornographic, sinful, abominable? Could you live with such a representation of the most tender and loving center of your life?" By this point Rav Noah had become agitated and upset. I too lost it, not in anger, but in humiliation and tears. The meeting concluded badly soon afterwards.

Rav Noah did not explicitly talk about o'ness or tinok shenishbah, but his approach was intuitively grounded in both of them. He freely admitted the difficulty of overcoming a sexual obsession, and this one in particular. Whether the forces working against observance were psychological or social, he grasped that these were formidable personal challenges. He could understand how one might succumb to such powerful sexual pressures, but the possibility of an alternative sexuality was simply unimaginable for him. He especially could not abide the possibility of integrating gay love into a coupled life, a familial life, a communal life, and ultimately, a holy life ... and of course this is what people most genuinely need and desire.

The bottom line for Orthodox communities is not whether a full-fledged halakhic solution is possible now. The real issue is whether religious communities can employ Lamm, Riskin, Rapoport, or any other halakhic authority to become truly welcoming of gay and lesbian people and their families. As constrained as these two solutions are, they do provide rabbis with a hook for toleration and understanding. While neither approach would automatically make people comfortable with openly gay couples in the synagogue, they could reasonably be applied that widely.

Were we to require absolute agreement, we would necessarily fail. From a gay perspective, the underlying assumptions of o'ness and tinok shenishbah are very problematic. Gay people cannot reasonably be required to internalize the claims that we are either mentally ill or victims of a debased social milieu. However, gay people can be expected to understand that their hard won self-acceptance cannot be imposed upon the community either.

Instead, everyone could be encouraged to adopt a policy of inclusion, grounded upon divergent rationales. Many concrete realities have been born of a shared policy constructed on the basis of divergent reasoning. Gay Jews will understand that rabbis just cannot go further than these leniencies and rabbis will understand that gay people cannot actively internalize the assumptions upon which they are based. What they will both agree to vigorously is the inclusion of gay people in the life of the traditional Jewish community.

Some authorities will not want the leniency of these positions to generate increased social comfort with gay people and especially with gay couples. Such rabbis are invested in the stigma of homosexuality above all else. Others I hope will be willing to truly welcome gay and lesbian people into their communities and forgo the degrading conditions of silence and self-negation. As well, gay couples in Orthodox shuls will need to exercise a modicum of care not to turn their honesty into grandstanding.

What will happen over time no one can tell. But it is likely that deeper and more thoroughgoing solutions will appear in the context of communal sharing and under the sway of the human relationships that will result. One might hope that over time we will come to fear each other less and enjoy each other's company more. Solutions often lie not in imposing ideologies from one side or another, but in nourishing our curiosity about one another and then living with the ambiguities. It is my fervent hope that in time congregations will find various ways to set aside their discomforts and that gay and lesbian people will find the courage to risk their hearts for the sake of coming home. Many of us are ready to be woven back into the life of our communities, to share its joys and sorrows, its burdens and delights—if only a door is left open and a light is left on.

Rabbi Steven Greenberg is a senior teaching fellow at CLAL—The National Jewish Center for Learning and Leadership based in New York City. He is the author of Wrestling With God and Men: Homosexuality in the Jewish Tradition (University of Wisconsin Press, 2004).

Source Citation

Greenberg, Steven. 2004. Gay orthodoxy revisited: The constrained Halakhic solutions. Tikkun 19(5):61.