Question

To Rabbi Michael, greetings,
As you may have noticed, the homosexual issue troubles me greatly (as it does many others) from the standpoint of Torah and morality, and sometimes things are unclear to me based on my halakhic knowledge and what I find in the answers given to homosexuals (I am not homosexual). I wondered whether the Rabbi could answer the following question: is it permissible for homosexual men to live together for the sake of a romantic relationship or also for raising children? Because according to my study, which I will present here, and according to reading the responses rabbis give, it seems to me, in my humble opinion, that this is permitted.

I saw that Rabbi Araleh Harel wrote here https://www.kamoha.org.il/?p=20377 that there is no permission for a relationship between men under any circumstances, and that whoever thinks there is permission needs to bring proof, despite the quotations brought there from rabbis who ruled that a relationship is possible under limited conditions. I wanted to ask the Rabbi whether the following does not show that it is permissible for homosexual men to live together (and I would say that ideally they should sleep in separate rooms or in separate beds) for the sake of a romantic relationship or one that includes raising children, while trying to avoid actual male intercourse, that is, from “inserting a brush into a tube” in anal intercourse, and at most they would violate emission of semen in vain. (I think things of this sort could also strengthen the understanding that no Torah-observant person should have any business with what each person does in his own home, but that is already politics.)
It is said in the Mishnah: “Rabbi Judah says: an unmarried man should not herd cattle, and two unmarried men should not sleep under one blanket. But the Sages permit it.” And in the Talmud: “It was taught: They said to Rabbi Judah: Israel is not suspected of homosexual intercourse nor of bestiality.”
And one must ask—

1. Did the Sages not recognize sexual desire between males among Jews? That sounds factually absurd. Also Maimonides’ view that “Israel is not suspected of homosexual intercourse or of bestiality, because this pure people is not overcome by desire for these two acts, which are outside the natural way” (Commentary on the Mishnah, Sanhedrin chapter 7) apparently meant there that Jews will be very careful about the prohibition, because the tendency is unnatural and therefore they will fear committing the abomination; besides, Maimonides writes laws about homosexual intercourse applying to Jews. And what the Shulchan Arukh says in Even HaEzer 24:1, “Israel is not suspected of homosexual intercourse or of bestiality; therefore there is no prohibition of seclusion with them… But in these generations, when the promiscuous have increased, one should avoid being secluded with a male,” and the Vilna Gaon there who says that even gentiles “are not suspected nowadays,” only shows that this depends on society and on time. And today, when there are religious people and secular people, it is possible that religious people who declare that they keep Jewish law are not suspected of homosexual intercourse, while secular people are suspected. But clearly this is only for the sake of sufficient probability to issue a halakhic ruling about sleeping together, and clearly there are many who violate the prohibition in every society and every time.
2. It is still puzzling why seclusion is permitted, for surely Jews are suspected regarding “and guard yourself from every evil thing,” namely the prohibition of lustful thoughts and emission of semen in vain. We already ruled out in section 1 that the Sages did not prohibit sleeping under the same blanket because of homosexual intercourse on the grounds that Jews have no homosexual inclination, but rather because Jews carefully observe Jewish law. But that still does not explain how they permit arousing desire at all.

Rather, it seems to me that the logic is like the logic in the passage of “an alternative path” in Bava Batra 57b: “‘And shuts his eyes from seeing evil’—Rabbi Hiyya bar Abba said: this refers to one who does not look at women while they are standing over the wash. What are the circumstances? If there is another path, he is wicked; if there is no other path, he is coerced. Actually, it is a case where there is no other path, and even so he should force himself.” That is, this is talking about a case of need, and in a case of need we are not concerned about lustful thought.

And regarding emission of semen in vain, its essence is because of lustful thought under “and guard yourself from every evil thing,” for once there is permission to come to lustful thought there is automatically permission to come to emission of semen in vain, as they said, “A man should not indulge in lustful thoughts by day and come to impurity by night.” There is no difference between permission to risk lustful thought and permission to risk emission of semen in vain. Our Sages could already have prevented the physical release of semen in order to reduce the prohibition of someone who comes to lustful thought against his will, by all sorts of techniques such as neutralizing the semen with various substances even before it actually comes out, and yet they did not instruct people to do so, because that is not the main point; the main point is the lustful thought. In the Talmud they instructed testing whether someone had a damaged urethra into warm bread, and one could likewise use a pouch like a condom that would neutralize the semen; the Rogatchover even permitted in our times doing this inside a woman’s body, where the semen that meets the condom is immediately nullified. But the main prohibition is lustful thought, and with one’s wife there is no such issue of lustful thought.

If so, it seems that it is permissible for homosexual men to live together even though there is a risk that desire will be aroused, and the Sages said that the probability that, מתוך their carefulness with Jewish law, they will not sin by homosexual intercourse is high enough—even though they will have lustful thoughts and emit semen in vain.

It should be added that if this contrast seems unreasonable—“they are not suspected of homosexual intercourse” but they are suspected of emission of semen in vain, after all both emission of semen in vain and homosexual intercourse are prohibited—can a person know how to emit semen in vain and not sin by anal intercourse, like inserting a brush into a tube? The answer is that it is not “despite the fact that they will emit semen in vain,” but rather that the halakhah in their time was clearly that it is forbidden to emit semen only in vain, as the Talmud says, “And why all this? Because he emits semen in vain” (Niddah 13a), whereas when one needs to emit semen in order not to commit a sin, for example in the case of homosexual intercourse, that is different. As Sefer Hasidim writes, and the commentators on the Shulchan Arukh bring it in order to rule accordingly, that if a person fears he may come to forbidden sexual relations, he should emit semen: “There was an incident of someone who asked: if a person’s impulse grows strong within him and he fears lest he sin by lying with a married woman, or with his wife while she is menstruating, or with other forbidden relations, may he emit his semen so that he not sin? He answered him: at that time he should emit it, for if there is no other option, it is better that he emit semen than sin with a woman. But he needs atonement: let him sit in the cold during the winter days or fast forty days in the summer days.” This is because then it is for the sake of a commandment—to avoid a transgression—as explained at length by Chokhmat Shlomo in Rachel Bitekha HaKetannah: “This can be explained further: since semen was permitted in order to establish offspring, and the offspring of the righteous are good deeds, and if a person sat and did not commit a sin he is given reward as one who performed a commandment; therefore when a sinful matter comes to him, such as a married woman or a menstruant, and he does not do it, this is considered for him as one who performed a commandment, and performing a commandment is offspring. Since emitting semen was permitted in order to establish offspring, therefore it is permitted for him to emit semen for this purpose.” (Certainly these atoning practices are not required by strict law.) Here, in order not to violate homosexual intercourse, this is not emission in vain but for an actual need. And many have likewise written in various contexts such as the marital obligation and testing whether one has a damaged urethra, that one should emit or is permitted to emit semen, depending on the context.

Based on all this, it seems that homosexuals may live together for some need (according to the logic of the “alternative path” passage), a need such as the desire to be together because “it is not good for man to be alone,” or also to raise children together as a family; and if they see that their impulse is growing strong, they should emit semen without having anal intercourse with each other, meaning that they should not be like one who inserts a brush into a tube, and thus the impulse will calm down and they will not sin by homosexual intercourse.

And it can be said that if they did sin by actual homosexual intercourse, they must repent, but that does not change the fact that if they are religious they are not suspected of homosexual intercourse. “A Jew, even though he has sinned, is still a Jew,” and “if you saw a Torah scholar commit a transgression at night, do not think badly of him by day, perhaps he has repented.” Likewise, a couple who sinned with the laws of menstruation do not need to divorce and do not need to separate. And I saw that Rabbi David Stav and Rabbi Avraham Stav, in their article in Tzohar (issue 40, pp. 81–100, which can be seen here: https://www.kamoha.org.il/?p=445674) “The Laws of Seclusion for Those with Same-Sex Attraction,” brought the words of Rabbi Chaim Palachi from Ruach Chaim, Even HaEzer 24:1: “And it seems to say in this matter that anyone who has stumbled, even if he has done complete repentance, remains under the prohibition of seclusion with males, and he should undertake by a severe oath and holding a sacred object that he will never again be secluded with males.” And based on this they said that if someone committed homosexual intercourse, he is considered suspect even if he has done complete repentance. But it is hard to understand Rabbi Chaim Palachi that way, because not only does the need for an oath show that this is not a prohibition by strict law (for one does not swear not to violate a prohibition), but Ruach Chaim was speaking there altogether about teachers of children and people in public professions, and this is because of social regulation. His full words are: “And in these generations, when the promiscuous have increased, one should distance oneself from seclusion with a male. And Rabbi Bah wrote that by strict law one need not distance oneself, only as a pious practice. And it certainly seems that where we find that some person has stumbled in his profession in homosexual intercourse, whether he is a teacher or some of the people in professions, one should not allow him at all to be secluded any longer with a male. I already wrote in my holy book Tokhachat Chaim on Vayetze, chapter 7, that although Rabbi Bah wrote that one need only distance oneself as a pious practice, where there is someone promiscuous in forbidden relations one must distance oneself by strict law. And all the more so if he stumbled in his profession, he is not secluded, as Radbaz wrote in his responsum, part 5, no. 20 [?], and in my responsum in my holy book Chikkei Lev, Yoreh De’ah no. 46, I discussed at length whether repentance helps in such a case to restore him to his profession, and I brought the dispute among the halakhic decisors about this. And it seems to say in this matter that anyone who has stumbled, even if he has done complete repentance, remains under the prohibition of seclusion with males, and he should undertake by a severe oath and holding a sacred object that he will never again be secluded with males, neither by day and all the more so not by night, and in this his repentance will help for us. And everything depends on the judges of the city as they see fit, upon them rests the obligation.” That is, “he remains under the prohibition of seclusion” was said about the public not being secluded with him, and this is a public matter of a religious court and an oath, not by the strict laws of seclusion but according to the social order so that he will not assault people. It is not talking about a person who stumbled with his partner and did not harm public order. Indeed, what he writes in Chikkei Lev Yoreh De’ah no. 46, to which he refers, is that one should not accept the sinner’s repentance because of public honor (and perhaps the Stav rabbis were also thinking of a public setting like a dormitory and did not have couplehood in mind).

And if we wonder how it is possible that something punishable by stoning in the presence of witnesses should be permitted in such a readily available way, as would likely happen after the fact in the path I suggest, one can answer: (1) In any case, many people frequently violate many prohibitions punishable by stoning in general Jewish society, and therefore this is the reasonable social structure in which the Torah shapes society. (2) This is similar to something that is not an inevitable result on the Sabbath: one may repeat the same act many times even if it is certain that on one of the occasions a forbidden labor will result from the act, so long as it is not certain on each individual occasion. So too here, they will likely violate homosexual intercourse, but this is a matter of probability, and each time anew Israel is not suspected of homosexual intercourse. (3) The punishment of stoning is specifically with witnesses, meaning in public or in a place that is not private. Intercourse between two males is not the ordinary sexual mode of the public, and one who does this in public causes lustful thoughts in others, including those not sure of their inclination; but if it is in a locked room there is no law of stoning at all.

It may also be said that if they already live together, perhaps in any case it would occasionally be permitted to emit semen without anal intercourse, that is, not like inserting a brush into a tube, according to the view of Ezer Mekudash, who derives from the law of “one who comes from the field and is weary” that there is no difference between emitting semen by hand alone and anal intercourse with a woman: “Even according to those who permit unnatural intercourse one time, it is far-fetched to distinguish between unnatural intercourse and by hand. Although I wrote elsewhere some rationale in the sense of ‘it is not good for man to be alone,’ this is not the style of the halakhic decisors at all. And through this there is a double doubt: perhaps according to those who permit one time, perhaps it is only an asmachta, and then it would be a double doubt in a Torah-level matter, and in rabbinic matters one doubt suffices. And this double doubt is better than the double doubt regarding fish grease and regarding children, for there one could say that there is a double doubt to be stringent as well, which is not the case here. And if someone says that this is the category of a double doubt—whether Torah-level or rabbinic—one can say against him that this is not a reversible double doubt to be stringent. Since a double doubt to be stringent is learned only from a double doubt to be lenient, one should not be stringent with such a double doubt. But even without this, it is already decided as above that it is only an asmachta, and in any case there is doubt that one time it is permitted. Nevertheless, one should not permit it from the outset, and through the above (according to what was explained above together with what I wrote elsewhere) there is something like a shield against calamity. And at all events, after repentance with regret, cessation, and confession, there is no further opening to make any mark of sin, at least regarding one who sinned inadvertently.” And it seems that about this Rabbi Kook wrote in the paragraph “The Reversals of Natural Tendencies” (Orot HaKodesh, part 3, second gate: The Way of Holiness, third section, no. 35, p. 297): “And some of the impurity, in a way that may perhaps be found in an individual in a manner that cannot be uprooted, this the Sages foresaw from the beginning and said about it: whatever a person wants… like the fish that comes from the hunt—if he wants to eat it roasted, boiled, or cooked, he may eat it. And in this they probed deeply into human nature, to the point of compassion for those damaged at the root of their formation.”

Finally, if we ask why the Torah and the Sages would allow the risk of physical intimacy involving emission of semen, but not allow homosexual intercourse, after all homosexual intercourse is part of a prohibition whose reason is not entirely clear, and what exactly prompts the question here? Still, one may answer that anal intercourse is intercourse symbolizing exploitation without a personal relationship, unlike “face-to-face,” which symbolizes a personal bond, as opposed to every form of personal bond of true love, all the more so if they are together engaged in settling the world by raising children.