Morality, Legality and Homosexuality

Rosh Hashana 1992

by Harold M. Schulweis

Judaism is wedded to creation. We are in this world and of this world, and not of another. Judaism promises no escape from the sand and rocks of reality, and its idea of salvation counsels no flight to another world.

The very first line of the Bible speaks of creation: “In the beginning God created.” We begin with the creation of this world. We are to be concerned with the creatures of this world, the creatures of the sea, the fowl of the air, the beasts and the cattle, everything that creeps upon the ground, and the human being. The Bible focuses attention upon the promises and failures, the sins and lusts, the dreams and desires, the creation out of dust of the human being endowed with the image of God.

Judaism is married to reality, the whole of reality. It does not flinch from the encounter with sickness or death or guilt or sin. Nor does it avert its eyes from the condition of sexuality. In the midst of the holiest day of Yom Kippur at the Mincha service, the tradition selects for public reading not an episode about angels or saints, but a section from the Torah that deals with the nakedness of the body, incest and adultery, and homosexuality. In that reading, the verse is found, “Do not lie with a male as one lies with a woman. It is an abomination.” (Leviticus 18:22) In Leviticus 20:13, the verse is expanded to include, “And if a man lies with mankind both of these have committed an abomination. They shall surely be put to death. Their blood shall be upon them.”

If our tradition dared to speak of such intimate matters on the holiest of days with candor, should we smother our thoughts and mute our words about these concerns? If Judaism is a way of life, a way of responding to reality, then the phenomenon of gay and lesbian relationships must openly addressed. Every major church, every social critic, every newspaper, every journal is focused on this phenomenon. It has been placed prominently on the agenda of the great political debate before the November election.

According to the best informed sources, it is surmised that 10% of the general population is homosexual. Demographers suggest that the same percentage applies to other people including our own. If then there are 6 million Jews in America it may be conservatively estimated that 600,000 gay and lesbians are in our midst. Six hundred thousand is a large figure, as many as all of the Jews in all of Los Angeles. Even if the lower estimates of 4% of the population are used, it would mean that 240,000 Jews are homosexual. The issue is presently being debated in the Rabbinical Assembly, the Jewish Law Committee of the Conservative Movement, and among Biblical scholars and masters of the law.

My interest in the matter is more personal, less academic. It began a few years ago. She was a woman, a member of our congregation in her late 50's,  who sat in the congregation and exhibited a familiarity with both the Prayer Book and the Bible. She came every Sabbath, and then at the end of one service asked to see me privately.

She sat across from my desk. “You may remember my son, who attended Hebrew High School and was a student at the University of Judaism. He kept the secret of his orientation to himself. Whenever the issue of gays and lesbians came up, he felt threatened, ridiculed, humiliated, hurt. I knew his sexual orientation and he knew how disturbed I was with the state of affairs. One day, he announced that he was going to San Francisco for ‘the cure.’ A friend had suggested the right therapist who would change him, would teach him to be straight and normal. I kept receiving a number of letters from him. He was ebullient. Things were fine now. He had changed. He was a ‘new man.’ Then I discovered much too late that he was lying to me and to himself. My son took his life.”

She stopped speaking and looked at me. “I'm here to ask you Rabbi, was my son an abomination? Was he punished? Is that why he died?” She was visibly shaken, her eyes full of tears and pain, despair and anger. “I want to know,” she continued, “what does Judaism say about my son? Was he guilty or was I? Was I too strong, too domineering a mother, and my husband too weak, too detached?”  She had come to me for a posthumous eulogy.

Her question never left me. It is one thing to read a scientific paper or to examine a rabbinic text; it is another to look into the pained eyes of another human being. It is one thing to know the laws; it is another thing to speak it out loud to another.

After her visit, the stigmatized issue of homosexuality seems to emerge everywhere. Shortly after her visit, I read an article in the Jewish press by Dr. Morris Mandel, a clinical psychologist who cites the following letter he received:

“Before I take my life, let me write you for advice. I am Jewish, Orthodox and most unfortunately, homosexual. Talk of marriages thrust in my face as I am of marriage age. The only trouble is that I am running out of excuses. I have done much repentance and prayer to God, but He does not hear my prayers. I am a sub-human creature. Life to me is hearing more jokes about homosexuals. My heart bleeds and I pray to the God of my fathers that He never again thrusts this poison into the House of Jacob.”

There have been several scientific studies indicating an unusual prevalence of suicide attempts among homosexual persons. The recent report of the Secretary's Task Force on youth suicide projected that gay adolescents were two to three times more likely than their peers to attempt suicide. They accounted for more than 30% of completed youth suicides last year.

Increasingly, over these last years I have been visited by people from within the congregation and from without. Jewish young men and Jewish young women whom I know and who know me, whose parents I know and who are members of the Synagogue. At first they speak in whispers, with stammering hesitation. But finally, there pours out of their lips revelations of terrible hurt and confusion and the feelings of worthlessness. They tell of the nagging clues of their felt difference during their early adolescence, feelings they have managed to repress. For a long time, memories of their predilections for certain games and certain apparel and friends of the same gender were buried. Then as they grew older a recognition of their attraction to people of the same gender could not be denied. It was for them a deep, dark, shameful secret. They did well enough in school and had warm relationships with their parent, but they were bleeding every day from jibes and jokes about dykes, queens and butches, and of faggots, fags and “feigele-boychik.” Everyone laughed at the mimicry of the stand-up comedians. The minced gait, the sissy lisp, the limp hand that brought peals of laughter to everyone except to themselves. Why could they not laugh?

It was not easy for them to make the appointment with me.  They were apprehensive about my reaction. They had come to me not knowing exactly why, whether out of guilt, or the need for confession or more often out of a concern for their parents.

“I love my parents. I love my family. I can't bear to hurt them. I don't know what to do. Can I keep on hiding it from them? Should I run away? Should I leave the community? Should I leave the congregation?”

“I don't know what to say to the friends of my parents who want so desperately to fix me up. 'How come you're not dating?' What must they think of me?  that I have no sexual feelings, no romantic desires, that I am a eunuch? I love my parents. The other day my mother said, ‘All I want is to dance at your wedding,' and I died with guilt.”

“Honesty is important in my family. I was raised to tell the truth. What do I say to my employers about my sexual orientation? I have an important career that brings me close to people. Do I lie to them? Do I deceive them? Am I condemned to live like a fugitive, forever running, dissembling, fearful of being discovered? Am I doomed to live forever embarrassed? Must I remain so guarded with everyone lest I give the secret away? Am I so guilty, is my love so shameful that I must forever veil the mark of Cain on my forehead? What do I say to you when you see me with my partner? How do I introduce my domestic companion to you or to anyone? I am not in a closet. I'm in a casket.”

They are tortured souls, these Jewish sons and daughters. Some have dared reveal their secret to their parents. “Now that they know, my parents don't look at me the same way. But I am the same son with whom they played as a child, whom they fed and clothed and in whom they rejoiced. I am the same son who brought home good grades and participated in the plays in Sunday School, in Hebrew School, in regular school. I am the same son with whom they rejoiced at my Bar Mitzvah. I look at the dejected faces of my father and mother and I tempted to cry out, ‘Papa, have you no blessing for me? Mama, do you see nothing in me but my sexual orientation? Am I not the same loving, caring, sensitive son to you?’”

What do I say to these our children? What do I say to them as a rabbi, as a Jew? What's the problem? It should not be so difficult for me to tell them. We all know the Biblical verse, the tradition, the law.

I turn to them and ask, “Did you choose to be gay or lesbian? Is this a matter of free will, your gay or lesbian lifestyle?” The answers are much the same. “Do you think that what I am I would willingly choose? That I would voluntarily choose a life that ostracizes me from my friends and family, that makes of me a pariah, that affects my career, my job, my house, my employment? Did you choose to be a heterosexual? No more did I choose to be gay. The choice I have to face is not whether to be or not to be as I am, not whether or not to feel as I do, but whether to reveal my sexual orientation or to bury it in me and recite the Kaddish.”

I read as much as I can, and talk to others about the issue. I come across a great deal of material which indicates the genetic character of some, if not all, homosexual orientation. I read of the work of Prof. Simon LeVay, a neuroscientist at the Salk Institute in La Jolla, who scanned brains of 41 cadavers, including 19 homosexual males, and identified a tiny area in the brain believed to control sexual activity. Dr. LeVay found that the hypothalamus was less than half the size in gay men than in heterosexual men; and that a portion of the hypothalamus in the brain of males was more than twice as large as that of women. He observed that the cluster of neurons was more than twice as large in heterosexual males than in homosexual males, and that the cluster in homosexual males was about the same size as those in women.

Researchers from report their findings in the Proceedings of the National Academy of Sciences (July 1992) offering more evidence that brains of homosexual males are fundamentally different from the brains of heterosexuals. Based on the examinations of brains obtained by autopsies, the UCLA neuroscientists Roger Gorski and Laura Allen, report that the band of fibers connecting the cortex of the left and right sides of the brain - the anterior commissure -was 34% larger in homosexual men than in heterosexual men, and 18% larger than that of women studied.

Only months after LeVay's disclosure, the work of psychologist Dr. Michael Bailey of Northwest University and psychiatrist Dr. Richard Pillard of Boston University School of Medicine was revealed. Their research showed that if one identical twin is gay the other, is almost three times more likely to be gay than when the twins were fraternal. It suggests to them some clear genetic makeup which affects their sexual relations.

I am not a scientist and I do not claim to understand all of the implications of these researchers. There remains considerable uncertainty about the etiology of gay and lesbian sexual relations. If sexual orientation is in the brain, John Money, the psychologist at John Hopkins asks, when did it get there? Was it pre-natal, neo-natal, during childhood, during puberty? However these questions are resolved, it seems clear that no true judgment can assume that the gay person who appears before him is such because of some willed choice.

Scientific evidence aside, when I speak to these men and women they reveal that their preferential erotic attraction was not chosen, but discovered, and discovered with pain and anxiety. Their orientation is as given as my own heterosexuality, whether it is explained as an act of nature or of God. Who then could call such basic involuntary orientation immoral and justify its punishment? The testimony of these people must be heeded. When a person declares on Yom Kippur that he needs to eat food, we listen to him. “Even if a hundred expert physicians say that he does not need it, we listen to him –  as the scripture says “The heart knows its own bitterness.” (Proverbs 14:10)

The rabbinic ruling in the Talmud Baba Bathra and Nedarim declares “anus rachmana patray,” “The Holy One exempts those who act under duress.” In cases of compulsion, the merciful one exempts. Who am I to condemn and punish? The gender object of a person's sexual arousal can't be mandated. “Ought” implies “can.” But they can't.

But can't they? Other rabbis argue that while those who can't determine their sexual orientation or feelings, they certainly can control their behavior. They contend that we all have instincts, impulses, drives that are not in our control, but we do not give them license. They tell the gays and lesbians to inhibit their passion and follow God's law. So the chairman of the Conservative Jewish Law Committee in his responsum writes, “I have issued an invitation, or perhaps a demand, to the halachically concerned homosexual to refrain entirely from homosexual practice by remaining celibate and by not engaging in the common homosexual lifestyle.”

There are rabbis as knowledgeable and as moral as I who maintain that the law is the law, that the Biblical verses of Leviticus cannot, must not, dare not be changed. They argue that it is irrelevant to the law whether homosexuality is genetically or neurologically determined, whether or not they are “constitutional” gay and lesbian –  those who cannot meet their physical and emotional needs in heterosexual relationships, whether or not they are “anusim” – forced, coerced, compelled by nature – none of these factors justifies overturning the law. Whatever the etiology of homosexuality, whether it is traced to hormonal imbalances, whether psychological techniques are shown to be incapable of changing a homosexual to a heterosexual person, all such scientific, cultural and moral explanations are inconsequential. The divinely revealed law is irreversible.

Were I to follow their judgment, I would, in the last analysis, be compelled to say to those sons and daughters who seek Jewish wisdom and equity, “abstain forever.” Get thee to a monastery, get thee to a nunnery. Control yourself. Remain celibate for life, and that presumably would include autoerotic behavior.

I confess that I cannot for the life of me look into their eyes and deny them the intimacy, love, pleasure, and sensuality that is God's gift. I cannot in God's name, in the name of Torah and Israel, speak in that fashion. Because such a verdict runs against my Jewish sensibility. To bring misery, pain, torture, anguish to innocent people who are created the way they are violates my Jewish conscience. I cannot bury my Jewish sense of fairness and compassion. The words from the Book of Job ring in my ears. “Did He that made me in the womb not make him? Did not the one who formed him form me too and shape us in one womb?” I do not regard these people as sinners or their love as abomination. The God I have been raised with is “el moleh rachamim,” God who art full of mercy, and the attribute which Jews are to emulate is that of compassion.

More than compassion is involved. Jewish wisdom and the morality of Jewish law are at stake. The Torah is a law of life, of truth and of peace. The Torah is no cold slab of stone thrown down from heaven. The Torah was written in the language of human beings for our understanding and for our moral fulfillment. Jews have the right, and the tradition to interpret the text so that it sanctifies God's name, our lives and that of our children. This is no heresy. The Rabbis of the tradition over and again dealt with morally problematic Biblical verses that they would not allow to rest on their literal meaning. They interpreted the Biblical, “an eye for an eye and a tooth for a tooth,” so that it did not remain the Jewish way to compensate for injury.

In the Talmud, a deaf mute was considered to be retarded, mentally incompetent; an imbecile not able to serve or witness or to be counted in the minyan, or able to affect marriage or divorce. But that ruling was based on empirically false data. On a visit to the Vienna Institute for the Deaf and Dumb, Rabbi Simchah Sofer saw that their impaired speech and hearing had nothing to do with their intelligence and accountability, and urged altering the older rabbinic judgment. The law and its legal interpretations are rooted in history. Every text has its context. The laws of leprosy were in Bible times thought to be contagious, and originate in the sin of slander or other transgressions. Who today would apply the quarantine and sacrificial purification for an illness we have learned to identify as Hansen's disease? Who would maintain that disease is a punishment from God?

The rabbis of the Talmud assumed that homosexual acts were acts of free will, even ideological. They did not know of “constitutional” gay and lesbians who had no control over their sexual orientation. Moreover, it is far from clear what the biblical term “toevah,” translated as “abomination,” means or to what it refers. Some Biblical scholars maintain that the Biblical word for abomination “toevah,” refers not to homosexuality but more likely to cultic prostitution; and that what the Bible inveighed against was the pagan tradition that paid obeisance to pagan gods by all forms of illicit sexual behavior.

Many fear the domino effect. If homosexuality is decriminalized then adultery, pederasty and incest are next to fall. But the liberalization of sexual orientation in no sense condones infidelity or coercion or the absence of adult consent. Aside from the biological consequences of incestuous relations, which makes it more than a victimless transgression, the proponent of incest has legitimate alternative modes to express his sexuality, options that are denied the constitutional homosexual.

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