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.