Q&A: Homosexuality
Homosexuality
Question
A few days ago, a good friend of mine published a halakhic article dealing with homosexual partnership within Jewish law. Among other things, he argues that the prohibition of male homosexual intercourse is not included among the sexual prohibitions, and therefore restrictions such as seclusion or physical contact do not apply to it. What is the Rabbi's opinion on the matter?
Answer
Hello,
It’s hard for me to read all of that. If there is a specific argument you want to raise here for discussion, please present it. The claim you wrote here is, on its face, utter nonsense.
First, this is definitely among the sexual prohibitions, as stated explicitly in several places.
Second, even if it were not among the sexual prohibitions, there would still be prohibitions of seclusion and physical closeness here, since these were forbidden wherever they are liable to lead to improper thoughts and forbidden acts. The case of a menstruating woman proves this, since physical closeness was forbidden even though there is a leniency there in that at other times she is permitted to him. The special prohibitions regarding a menstruating woman are rabbinic, and there there is room for the argument that they are forbidden even where there is no concern about problematic consequences.
The prohibition of seclusion is a Torah-level prohibition, and in the standard understanding it is not a protective fence, because with Torah prohibitions there are no such fences (although in Atvan DeOraita this is discussed). Many people mistakenly think that saying this is not a fence means the prohibition was not stated in order to distance one from the transgression. That is not the intention. Clearly, forbidden seclusion and forbidden physical closeness are defined as acts/situations that will lead to transgression, whether improper thoughts or action. But the claim is that in those situations there is an independent prohibition. When you are in a situation that will lead to a forbidden act, that itself is a forbidden situation. However, regarding the question whether there is room to forbid it even where there is no concern that you will come to transgression, apparently not.
The Sages themselves write that the reason is that the Jewish people were not suspected of this. But can it enter your mind that two gay men living together are not suspected of this?! This formalistic clinging to the Sages’ factual assessments is foolishness. By that logic, today we would also have to say that women are light-minded, and that a person does not pay before the due date, even when our actual reality is different, and so on. There is no sanctity in the Sages’ factual assessments. Factual assessments are made in every place and every time according to the matter at hand.
Indeed, one’s heart aches for people who suffer and are in distress. But on the merits of the matter, this is utter nonsense.
Discussion on Answer
A. When the Sages determine that there is no concern in a certain type of people, then there is no prohibition. But the Jewish law does not depend on specific people assessing themselves. Quite apart from the fact that this is how Jewish law works, there is no guardian in matters of sexual prohibition. We do not find that a man and woman are asked whether there is concern for transgression, and based on their answer we permit them seclusion.
B. The phrase “from received tradition” in Maimonides does not mean rabbinic. Much has already been written about this. Nor does it mean “from the words of tradition,” which refers to the Prophets and Writings. It means from the tradition passed down through the generations, usually from Sinai.
The doubt begins because the Sages determined that there is no concern for male homosexual intercourse among Jews. And one must ask what they meant.
If they meant that this inclination does not exist, the claim is rather absurd and unrealistic, for if it does not exist, why forbid it in the first place? Moreover, why does the Shulchan Arukh add that “in a generation in which the licentious have become numerous,” one should decree seclusion on two males?
It therefore seems reasonable to say that what they meant was that even though the inclination exists, decent people are capable of restraining themselves from performing the act. And thus it also becomes clear that the stringency of the Shulchan Arukh stems from the fact that people are not sufficiently decent to restrain themselves in that way.
In light of this, it seems to me that the rule “there is no guardian in matters of sexual prohibition” does not apply to male homosexual intercourse, where the Sages gave a different criterion, “they were not suspected,” which is also somewhat contradictory; and from the stringency of the Shulchan Arukh it is proven that the matter depends on an assessment of specific people — not at the individual level, admittedly, but at least according to the condition of the generation.
A. Even if the inclination does not exist, there is still room for a prohibition. Igrot Moshe argues that even nowadays this is not an inclination but a lust. I of course disagree, but from what he says you can learn that there is no necessity for there to be an inclination in order to establish a prohibition.
B. I do not know what things were like in their time, and it also does not matter. Today they are certainly suspected of this. One should not deny what is obvious.
C. And certainly when they live together and are not merely secluded for a few moments.
D. But still, regarding their times, anything is possible: 1. The inclination was rare, especially if one assumes culture affects how common it is. 2. They could overcome it, in a period when the prohibition was regarded by people as very severe even on the normative level, and they did not hold pride parades in the public square or live together, and individual rights were not on everyone’s lips and protected by the state. 3. The Sages were mistaken in their assessment.
But as I said, all of this is not relevant to the discussion. The important question is what the reality assessment is today.
Hello Rabbi. I read the pamphlet. I won’t comment on all of it, but the inferences there are weak and there are many leaps, and in my humble opinion his words do not stand, though the discussion itself is important.
In any case, I’ll just note that if we come to Maimonides, the whole discussion never gets off the ground, since Maimonides writes explicitly that a male is part of the sexual prohibitions. See chapter 1 of the Laws of Forbidden Intercourse.
Thank you very much for your answer. With your permission, a few further questions in light of your response:
A. Classifying seclusion as an independent prohibition defined by concern for transgression should also have led to a prohibition of seclusion with a menstruating woman, yet from the Talmud (Sanhedrin 37a) it seems that there they rely on the person and do not decree seclusion:
“‘Your belly is like a heap of wheat’ (Song of Songs 7:3) — just as everyone benefits from a heap of wheat, so too everyone benefits from the reasoning of the Sanhedrin; ‘fenced about with lilies’ — that even if the fence is only like a fence of lilies, they do not breach it. And this is what a certain heretic said to Rav Kahana: You say that a menstruating woman is permitted to be secluded with her husband — is it possible for fire to be in flax and not flare up? He said to him: The Torah testified concerning us, ‘fenced about with lilies,’ that even if the fence is only like a fence of lilies, they do not breach it.”
Why not rely here as well on the two partners, who say they will not sin in this specific matter, and call that “they were not suspected”?
B. You stated quite emphatically that seclusion is a Torah-level prohibition, but from Maimonides’ wording (Laws of Forbidden Intercourse 22:2) it seems otherwise, so it may in fact be a dispute among the medieval authorities:
“The Jewish people were not suspected regarding male homosexual intercourse or intercourse with an animal. Therefore it is not forbidden to be secluded with them. But if one distances himself even from seclusion with a male or with an animal, this is praiseworthy. And the great sages would distance the animal so that they would not be secluded with it. And the prohibition of seclusion regarding the sexual prohibitions is from received tradition.”
The phrase “the prohibition of seclusion regarding the sexual prohibitions” also seems to focus the prohibition on the sexual prohibitions mentioned in the Torah, and consequently the question whether male homosexual intercourse is included among them or not would seem to matter.