Halakha and Homosexuality: why language matters

On July 22, a group of Orthodox rabbis put forth a statement of principles on homosexuality; The statement contains an error of language, one which reveals the way in which traditional Jews now talk about homosexuality.

The Jerusalem Pride Parade

Eleven of the statement’s twelve points discuss how communities ought to treat gay Orthodox Jews; nestled among them, number four announces, “Halakhic Judaism views all male and female same-sex sexual interactions as prohibited.” This statement seems straightforward; it’s not.

The sentence has two parts, a subject (“Halakhic Judaism”) and a predicate (“views all male and female same-sex sexual interactions as prohibited”). All the words in the subject come from Hebrew; nearly all of those in the predicate come from Latin. That’s not just trivia: there are two languages here, one the Jewish language of halakha, the other an American secular discourse about sexuality.

If halakha refers to a collection of texts running from the Hebrew Bible through the Talmud, on to the later codes, then halakha has nothing to say about “all male and female same-sex sexual interactions.” The phrasing implies two points:

1. Male and female homosexualities form a unified category of halakha. They do not. There is (maybe) a Biblical prohibition for the former, but not (really) for the latter. There is extensive Talmudic discussion of the former, but not of the latter (and what there is quite mild). Sad to say, the Rabbis–I am talking about the Talmud here–thought “sex” involved a penis. Treating them as the same requires a thoroughly un-Rabbinic view of sexuality.

2. Halakha views all gay sexual interactions as the same. The Talmud treats extensively the different sexual acts covered by Leviticus 18:22 and 20:13, and the Rabbis take very seriously the idea that some acts are prohibited and some aren’t. They knew about anal sex and vaginal sex. They don’t seem to have a conception of a “sexual interaction.”

The language of “all sexual interaction” emerges nicely from a modern, bourgeois conception of sex as the private realm of marriage. Sealed off from other activities and thus with its own distinctive character, such sex requires no definition in terms of acts. I see no evidence that ancient rabbis shared this conception; on the contrary, they carefully delineate particular acts that are prohibited.

Now, even if considering my objections, the Orthodox rabbis felt (as I think they would) that the modern, secular categories of acts were all prohibited; their sentence still is not straightforward.

Rav Soloveitchik, the greatest modern Orthodox rabbi, made just this point the center of his philosophy. Halakha, according to Soloveitchik, is not just a set of rules, but rather a conceptual system for experiencing the world, a set of categories that carry values, judgments, and the root of all Jewish thought. When the halakhic practitioner sees food, she sees it first not as “local,” “organic,” or “factory-farmed,” not as “Indian,” “Chinese” or “American,” not as “caloric” or “healthy,” but as “kosher” or “unkosher,” “meat” or “milk,” “needing to be inspected for insects” or… you get the point. Halakha, like a scientific theory or any other structure of thought, is a set of concepts for interpreting sense data; its categories are not inherent in the sense data, but rather concepts that derive their meaning from their place within the system.

Suppose a Rabbi makes a comprehensive list of the chemical processes that result in chametz (leavened bread forbidden on Passover) and those that don’t. Suppose he says that halakha prohibits the products of the latter, and permits those of the former. He’s correctly defined the extension of the halakhic prohibition (that is, what elements in the set of food products it prohibits) but said very little about the halakha’s intension—that is, what the halakha means. The laws of Passover have, to be honest, no logical relationship with those of chemistry, only coincidental relationships. To the degree that they have an internal structure, to the degree they are ordered, to the degree they mean anything, it is not in terms of chemistry at all. Halakha makes sense in terms of halakhic categories.

The sentence I have analyzed, in its conjunction of halakha and modern categories, has eschewed an actual halakhic conversation about gay people for a secular, external standard. It’s the exact inverse of the controversial Israeli conversion bill, which in the midst of discussing legal structures defined in secular language, requires that conversions “follow acceptance of the burden of the Torah and commandments as required by Jewish law.” There’s no attempt to define what those words entail (cribbed from halakha) in secular terms. Rather, the clause quotes another discourse, and in doing so cedes authority to interpret the law. Similarly, in “quoting” contemporary language about sex, the rabbis have essentially ceded authority for interpretation of the law to the outside culture.

It’s as if Orthodox rabbis talked about glucose and starch, but never about chametz (leavened bread) and matzah (unleavened bread): they’re not talking about the halakha of homosexuality. Why don’t they do so? Well, for one thing, the Rabbis really did believe weird things about sex: weird for liberal American Jews, weird for the bourgeoisie, weird for modern social conservatives, weird for moderns, period. Anyone who reads a single rabbinic conversation about sex knows that.

Unlike Soloveitchik, I don’t think that halakha is an entirely autonomous, continuous discourse; rather, like other systems of thought, it changes historically and frequently draws from adjacent systems. It contains multitudes, and the same negotiation across languages that occurs when we read the Talmud occurs, for instance, internally within the Talmud itself. Indeed, I suspect that much of the “game” of halakha concerns just these translations. But we shouldn’t pretend that translations are not happening. In his first post, Ben suggested that music can create emotion, rather than just communicate it. Similarly, languages and discourses not only convey but also create meaning; laws—like melodies—exist and take shape in discursive contexts. When we close down that discourse, we’ve shut down a real conversation about that law.

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12 Responses to Halakha and Homosexuality: why language matters

  1. David says:

    I’m really missing the point here. “Sexual interactions” is a vague term. It was not meant to be defined by American culture, but by halakha. For a Pharisaic Jew (which those of us who still follow our traditions are), that means different things for men and women. “Sex” always involves a penis, that’s correct. There’s also a slew of rabbinic prohibitions regarding stimulating men – that is, if a man is homosexual he will need to avoid all interactions that would lead to erection. So for me, holding a guy’s hand would be fine, but for him, maybe not… The rabbis were very cognizant of our sexual natures, and even forbade two men sleeping in the same bed under the same covers (recognizing a blurred line between homosexual men and heterosxeual men). The reason sex involves a penis and halakha was more concerned with male homosexuality is because because of the biblical prohibition of hashkhatat zera – destructive ejaculation. It’s not murder, it’s not even abortion (which is also not murder), but it’s having respect for the beginnings of human life not to just dump it on the floor, a garbage can, a towel, what have you.

    As for women, their homosexual sexual activities were understood by the rabbis to be even wider than men. The prohibited activity is vague, but let’s assume it involves the vagina. The fear there was that they would develop meaningful same-sex relationships and never feel the need to marry (thus causing harm to the Jewish social fabric and decreasing the always tenuous Jewish population). On the one hand, this does not fit into the modern liberal view, whose response would be variants of “No it wouldn’t,” and “So what?” But on the other hand, it’s very “modern” in that it recognizes a woman does not necessarily need a man for relationship and sexual fulfillment; she just needs a partner. Although ten do mil’metav armalo (it’s better for a woman to be married than single) might seem to contradict that – ten do is possibly only speaking of a woman who has not found that special woman (as she is presumably following halakha).

    I have found no indication that the rabbis did not understand sexual pleasure, as the author implies (and I don’t see how that would even be possible, but then again, you read some of the Vicwardian literature, and you wonder).

    The prohibition of male homosexual acts goes beyond hashkhatat zera of course. Homosexual anal sex itself is prohibited as a separate biblical prohibition. Biblical law needs no reason, and it can sometimes make things worse to ascribe a reason for it. But if I had to, I’d say it’s for the same two reasons that the rabbis prohibited female homosexual acts. People slip up, or live secret lives, just as they do with any other prohibited activity (keeping kosher, keeping shabat, not stealing, etc.) bu as a society we’re not going to change our public discourse. When idolatry became rampant, we didn’t throw up our hands and say, “All right, what the Hell, some of this baal stuff is fun anyway.” More recently, despite huge numbers of married women who stopped covering their hair in the 19th and early 20th centuries, we didn’t say, “Well that’s okay.” Each woman had her individual challenge and she met it or didn;t (and now there’s been a pendulum swing). What’s important is not to treat homosexuals any worse than folks who, as a rule, don’t keep shabat or kosher, but to treat them as Jews facing difficult challenges that they may or may not overcome.

    I know the point was supposed to be something about mixing terms, but as long as we’re speaking English, we can use English words when discussing halakha and understand that their definitions will be ultimately be determined by halakha, not modern American mores.

  2. David–

    Thanks for commenting!

    A couple of points:
    A) I never implied that the Rabbis did not understand sexual pleasure. I said they didn’t conceptualize sexuality as an autonomous sphere which self-evidently characterized a set of acts irrespective of the physical content of those acts. I don’t think those two statements are related, so I’m a little confused on this point.

    B) “As for women, their homosexual sexual activities were understood by the rabbis to be even wider than men.” I’m not sure I see the evidence for this; in general, it’s going to be tricky for us to talk through these questions if you don’t provide sources. I think that a problem with my original post was that in my haste to get it up before Shabbos, I left out sources. In my understanding, the earliest source for a prohibition on lesbian activity is the Sifra on Leviticus 18:2, which concerns itself specifically with a writing a ketubah. The main source I rely upon is bYevamot 76a, which assigns something like lesbianism to pritzut. There’s very little discussion of it. I am sorry I cannot give a very good account of lesbianism in the Talmud–it’s such a small set of sources, and so vague, and I am not a scholar in the field. But your conception of it seems to me without significant support (it has been one reading–but not the only. actually the majority understanding seems to be that lesbianism will lead to the woman becoming used to sleeping with someone, thus leading to prohibited heterosexual sex–see Bavli Shabbat 65a-b).

    As to my broader point, I guess I am arguing that the language in which we talk does make a difference. I appreciate your move towards halakhic language, but absent a structured move through the sources, I’m afraid it’s unpersuasive.

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  6. דוד פ says:

    An interesting post. A few comments:

    1. There is a concept among the Sages called “Avizaraihu D’Arayot” — which bears some similarity to the modern concept of “Sexual Interaction”.

    2. Rav Soloveichik’s “Halakha” is what we today call “Iyun” or “Pilpul” — not what we today call Halakha. [Rav Amiel uses the term in the same way in his המידות לחקר ההלכה.]

    Consider for example Rav Soloveichik’s remark in his “Halakhik Man” that the eponimous Halakhik Man refrains – as a matter of principle – from issuing Halakhik verdicts.

    See also his son’s “Rupture and Reconstruction” http://www.wexnerheritage.org/Portals/0/Religion–Rupture%20and%20Reconstruction,%20by%20Haym%20Soloveitchik.doc

    3. Regarding conceptual schemes, see Donald Davidson’s seminal “On the Very Idea of Conceptual Scheme”
    http://www.mystfx.ca/academic/philosophy/Cook/2008-09/on%20the%20very%20idea%20of%20a%20conceptual%20scheme.pdf

    • Thanks for this response; it’s quite intelligent and challenging.

      1. I’d be fascinated to see the particular sources you have in mind. As I say generally when people make this point, please see Boyarin’s source on intercrurral sex.

      2. I’m not sure I agree with this point. You’re certainly right that the Rav was operating in a high-intellectual, Brisk mode of understanding. As to whether he intended this mode of operation to have consequences, it’s hard to say, in part because the Rav was so hard to get to give p’sak. One good exception I can think of: he was extremely machmir on potential changes to the minhag/nusach of tefilla, because he believed that the ability to pray at all was predicated on a divine act of grace, and our job in asking bakashot (this is a beautiful existentialist reading of the rambam) is to acknowledge our distance from god and deep inadequacy before him. So I think that the ideas here can “cash out” even for him. And of course, his intentions are not entirely the question, since it’s hard for me to imagine an intellectually honest practice of iyun that did not lead to real consenquences in p’sak…

      Actually, the bigger problem for me, I think, may be that the Rav’s method is totally incompatible with any sort of historical method. I am not sure it is, but that’s to be the subject of a much more complex post.

      3. As to the Chaim Rappoport article (one of my favorite piece of Jewish history ever, despite its significant flaws…) isn’t it clear that the method of the Vilna Gaon and Chaim of Volzhin did lead to changes, as evidenced by, say, shiurim? Maybe I’m not seeing the way in which you’re bringing this article–I’d be fascinated to hear you walk me through this.

      4. I will read the Davidson, though, judging by my past experience with him, I don’t expect to be able to respond intelligently…

  7. Sorry, just to clarify–just realized you interpreted the Rav’s refusal to give p’sak as evidence for your view. I’m skeptical, because I think the real answer may be the the Rav was radically individualist, and recognized the seeds of annihilating the posek in his existentialism. This is not something I could prove yet, and may sound shocking… nevertheless, my hunch is it’s right.

    More clearly, I should have stressed that the Rav’s reading of tefillah was a reading of the halakhic argument on whether forms of tefilla (as opposed to the imperative to prayer at all) is d’oraita or d’rabbanan–a machloket, as I recall, between the Rambam and the Ramban–so this is a case of the Rav’s halakhic reasoning being both iyun and practical

  8. דוד פ says:

    Good Moed!

    Concerning Avizarayhu D’Arayot, see here:

    http://kodesh.snunit.k12.il/i/5121.htm

  9. Ah—will look more closely… thanks. One caveat to my whole post should have been that, for constraints of space, I was dealing only with the Talmud stratum. It might be objected that halakha is much bigger than the Talmud, to which I reply that when I see the Orthodox teshuva that takes full account of the problematic sources in the Talmud, then I’ll move to look at the rest of the discourse…

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