Torah Judaism, Homosexuality, and Gay Marriage

The Torah does not like gays.

For some Jews, this is not a difficult challenge to overcome. The Torah may have been inspired by God, but it was written by men. Its intolerance toward homosexuals can be written off as the outdated bigotry of a bygone age.

For others, it is not a challenge at all. The Torah is the unchanging word of God. Since it describes homosexuality as an “abomination,” then that is how it should be treated.

And then, there are the rest of us, who try to take from the best of both worlds and are faced with the challenge of reconciling the seemingly irreconcilable.

I believe that the Torah is the word of the living God. I believe that every word in it has meaning, and that we don’t get to pick and choose which parts to believe. I believe that the Sages who have interpreted the Torah throughout history, while they are not infallible, have transmitted our tradition to the best of their ability, and we cannot simply dismiss the teachings we don’t like.

It is difficult for people outside of this belief system to understand the scope and complexity of the laws and traditions followed by observant Jews. They are referred to collectively as halacha, which literally means “the way.” Halacha weighs in on everything from the prohibition against murder to instructions for how to put on one’s shoes in the morning. Halacha is hierarchical in nature, with some parts (e.g., the shoe-donning instructions) less important than others, and with some parts more amenable to adjustment. The prohibition against homosexuality lies within the category of halacha that is important, stringent and unchangeable.

I believe that I am enjoined by God to follow halacha. I believe that following halacha makes me a better Jew, a better person, and a better citizen of the world. I believe that by following halacha, Jews make themselves a holy people and a light unto the nations.

And yet, at the same time, I believe that homosexuality is inborn and not an “aberration,” that gays deserve to be treated with dignity and respect and to be allowed to live as full members of society, and that discrimination against gays is utterly and completely unacceptable. Furthermore, I believe that justification for these beliefs can be found within halacha.

If you see a contradiction here, then you are beginning to understand the challenge that I and the many Jews like me face when grappling with this issue.

The situation is not completely hopeless. The idea of a law in the Torah being so problematic that there must be a “loophole” is as old as our tradition of halachic interpretation. The best example of this is the law of the rebellious and disobedient son (Deuteronomy 21:18-21):

If a man has a stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken unto them. Then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place. And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard. And all the men of his city shall stone him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear.

The Sages of the Talmud, who no doubt had sons of their own and were familiar with just how “stubborn and rebellious” they could be, were just a little bit concerned about this halacha. Their solution was to “interpret” it out of existence, to place so many caveats and restrictions on its enforcement that the likelihood of its ever being carried out was virtually nil. At the end of their discussion, in the Babylonian Talmud, tractate Sanhedrin, page 71a, Rabbi Shimon declares, “there never was [a child who met all the criteria] and there never will be in the future.” However, it is important to remember that the core concept that the rebellion and disobedience of a son against his parents is a sin so grave that the Torah considers it a capital offense remains.

Modern rabbis and halachic scholars seeking tolerance of homosexuality within observant Judaism employ a similar strategy. The Torah law against homosexuality is a prohibition of the homosexual sexual act, not against homosexual feelings or a homosexual “lifestyle,” whatever that is. Furthermore, a conviction for a capital offense such as this one can result only from the testimony of two reliable male witnesses to the actual offense, and only if the witnesses warned the accused before the offense was committed that it was a capital offense, and only if the witnesses can confidently testify that the accused fully understood the nature of the offense before committing it. Finally, there is an overarching requirement in halacha to give people the benefit of the doubt, very similar to the “innocent until proven guilty” concept in American jurisprudence. Oh, and by the way, the Torah law against homosexuality doesn’t apply to women (it does, however, apply to non-Jews, one of only seven Torah laws that do).

The core concept that God does not approve of homosexuality and therefore neither should we remains. However, by interpreting away the ability to know that someone is guilty of violating the Torah law, and at the same time setting against it the requirement to give our fellow Jews the benefit of the doubt and to treat all Jews with respect and dignity, we seem to have solved the problem.

Well, almost. The gay-rights battle currently at the fore, at least in America, is gay marriage. To understand the challenge this presents to observant Jews, even those who have come to grips with the other aspects of gay rights as described above, you must first understand the traditional Jewish view of marriage.

According to halacha, the primary purpose of marriage is procreation. Every Jewish man is obligated by the Torah to produce and raise children (note well that the obligation is on the man, not the woman, because halacha is not supposed to put one’s health or life at risk, and pregnancy and childbirth are inherently dangerous). This obligation is so strong that there is a law, albeit one that is nowadays rarely enforced in practice and perhaps never was, that if a man discovers after he is married that his wife is unable to bear him children, he is obligated to divorce her and take a new wife.

The two challenges which halacha places on supporting gay marriage are now in sight. First, overt support for gay marriage transgresses the core concept that God does not approve of homosexuality and therefore neither should we. Second, a gay marriage (between two men as noted above, the halacha against homosexuality does not apply to women) is a public declaration by two men that they intend to ignore their obligation to procreate, and halacha does not look kindly (to say the least) upon public declarations of disobedience to Torah law.

Since the second of these is applicable only to Jewish men, if it were our only concern, then we would have no problem with endorsing civil gay marriage, although we would remain unable to support gay marriages performed in a Jewish setting. However, the first challenge affects our stance on civil gay marriage as well, since as noted above, the prohibition against homosexuality is one of the few which halacha considers binding on everyone, Jew and non-Jew alike.

Our response to this challenge is that although we cannot endorse the idea of civil gay marriage, we can not only endorse but actively promote making civil unions available to same-sex couples, with all of the same legal and civil rights that accrue from marriage. Because a civil union between two men is not necessarily a declaration of intent to engage in the prohibited homosexual act, we can, halachically, give the benefit of the doubt to those who enter such unions, and thus not violate the letter of the halacha. We may be stretching the spirit just a bit, but this is an acceptable trade-off when weighed against our halachic obligation to seek justice for all, to ensure equal treatment under the law, and to treat our fellow man with respect and dignity.

As I’ve explained above, we cannot actively support changes in the law to permit civil gay marriage. However, neither are we under any halachic obligation to oppose efforts by others to enact such laws. Furthermore, since we are obligated to respect and obey the laws of the land in which we reside, if gay marriage were to become legal, we would be under no obligation to work for its repeal. It is for these reasons that most American Jews have planted themselves firmly on the sidelines of the gay marriage debate. You can draw your own conclusions about which side Jews like me are cheering for.

The coping mechanisms I’ve described above will no doubt be perceived as too little by some gay-rights activists. Some, no doubt, will decry that we can only welcome gays into our communities by maintaining the illusion that we don’t actually know they’re gay and will brand this as no better than the universally despised “don’t ask don’t tell” policy of the American military. Others will declare that nothing less than full recognition of the rights of gays to marry is acceptable.

They’re right. These are not ideal solutions, and those of us who believe, as I do, that gays are entitled to equal treatment in our society, are not entirely happy with them. Nevertheless, we hope that the gay community will make an effort to understand that for us to go further would be to challenge the very bedrock of our faith. Just as we are doing our best to legitimize and recognize the rights of the gay community, we ask for the members of that community to respect the limits placed upon us by our faith. By meeting each other halfway, we will all benefit.