On Halakha and LGBT

By: Aaron J Koller  |  September 10, 2019

By Aaron J Koller, YU Professor of Near Eastern Studies

There is a conflict at once simple and profound at play in the question of homosexuality within traditional Judaism. It is simple in that it is easy to articulate. It is profound in its import both for our community and for our attitude towards halakha. The conflict is, in short: halakha is unforgiving in its condemnation of homosexual relationships for both men (biblically) and women (rabbinically). But respect for each human being’s right to love whom they wish, live with whom they wish, and build stable relationships built on mutual love and respect with whomever they wish, is equally unforgiving in demanding that the community not discriminate among sexualities. In even shorter form: the clash is between halakha and humanity.

What is the authority behind each side? On the side of halakha, it is halakha itself, which demands (tautologically) that it be respected, and traces that authority to the ancient rabbis and, in turn, to the Sinai revelation itself. A halakhic community, it would seem, has no choice. On the side of LGBT rights is something no less profound: the most deeply held values of the modern world – personal autonomy and individualism, especially in the realm of love and relationships. A modern community, it would seem, has no choice.

The effects of raising children with these two sources of authority are still to be studied, but we see them playing out all around us. For anyone raised to root for Romeo and Juliet against their parents or to cheer the Loving decision and deplore racism in marriage laws it will not be simple to put those values aside and discriminate against some other type of loving relationship – which is, bluntly, what the halakhic side is currently asking us all to do.

Now, some will say that this is indeed tragic, but that submission to the yoke of halakhic authority is the sine qua non of our community. Some have even invoked the religious model of akedat Yitzhak, the Binding of Isaac, to explain that one must subjugate one’s own will and desires to fealty to God. I seriously doubt that this is the meaning of that story, and in any event, remember the end: Abraham is told not to harm his son, and perhaps God thereby teaches him (and us) that religious devotion may not come through the harm of others.

This is the most disturbing part of the “akedah theology” (as Ronit Irshai calls it): it invariably is framed as self-sacrifice, but actually involves the sacrifice of another. I may be called upon to put aside my liberal values, but the person who actually pays the price is the LGBT friend who is not allowed to get married, not wished a mazel tov in the weekly community announcements, not welcomed with their partner into myriad communal frameworks.

Fortunately, there is a different way to go about this. The rabbis of the Talmud offer an entirely different model for encounters between our most deeply held values and law. On the contrary! Jewish law ought to be consonant with our values, assuming we really believe them to be true. In formulating what the lulav is, the Talmud assumes it must be something pleasant to hold, for “the ways of the Torah are ways of peace” (b. Sukkah 32a). In deciding how criminals have to be punished, it is obvious to the Rabbis that the method of execution must be dignified, for “you are to love your fellow person as you love yourself,” so we choose a dignified death (b. Sanhedrin 45a). More boldly, the Rabbis read the paragraph about the rebellious son in Devarim 21 and exclaim, “Just because this child ate a tartemar of meat and drank a log of Italian wine, the Torah said he should be taken to the court and stoned?!” (b. Sanhedrin 72a). It is inconceivable that the Torah would mean that, as it is grossly unethical. And when it is suggested that a verse in Vayikra means that a menstruating women should not look attractive, this is rejected, since this would cause a rift in the marriage, and that can’t be what the Torah wanted (b. Shabbat 64b). Even when the Rabbis were convinced that a course of action would be the correct one, if it were unsustainable because of sociological realities, it was abandoned (b. Avodah Zarah 36a, and others). After all, “the Torah was not given to the angels” (b. Kiddushin 54a, and see b. Shabbat 88a), but to human beings, with the expectation that it would be meaningful and relevant to them, flaws, imperfections, and all.

We are not, of course, Talmudic rabbis – with neither the intellectual and religious bona fides they had, nor the legal authority to do what they did. But their model of authenticity speaks across that great divide. In the absence of the authority to change the law, I have no choice but to choose against it. The Jewish philosopher Avi Sagi said: “Later generations will find the solution to this. People live with contradictions and don’t always settle them. But to say I cannot live morally because of my loyalty to a system that forbids me to do so is unacceptable. If a religious person tells me that, my answer is that God too is bound by morality, and when you deny God’s morality, you turn God into a demon.”[1]

So, in short: In a clash between humanity and halakha, opt for humanity, and have enough faith in halakha that the problem will be solved. And if somehow the conflict remains intractable, I would rather suffer for being a good person than sacrifice someone else’s life on the altar of my religiosity.

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[1] Hava Tirosh-Samuelson, “Interview with Avi Sagi: January 7, 2013,” in Avi Sagi: Existentialism, Pluralism, and Identity (ed. Tirosh-Samuelson and Aaron W. Hughes; Library of Contemporary Jewish Philosophers 10; Leiden: Brill, 2015), 151-183, at 179.


Photo: Professor Koller