Homosexuality, Choice, and Jewish Law

Reprinted with permission from Matters of Life and Death: A Jewish Approach to Modern Medical Ethics, published by the Jewish Publication Society.

The approach I took in my responsum for the Committee on Jewish Law and Standards (of the Conservative movement) in March 1992 adopted a biological argument for condoning homosexual sex. Specifically, there is some evidence that a homosexual orientation is inborn as a product of a person’s genes and neurological structure. These, however, are only preliminary results, and the consensus of experts nowadays is that sexual orientation is a product of both nature and nurture. Moreover, even if we assume that there is a biological correlation between certain physical factors (such as the size of the hypothalamus gland) that commonly characterize homosexuals in contrast to heterosexuals, one can, at least at this point in the development of the research, raise “the chicken and the egg question”–that is, do these physical markers cause homosexuality, or is it homosexual behavior that engenders these physical features?

What was therefore more cogent for me in writing my opinion for the committee was the testimony of actual gays and lesbians, many of whom attest that being gay is not something they chose. In fact, because of the widespread discrimination against gays and lesbians in our society, such people usually denied their homosexual orientation for many years and actively tried to fight off their homosexual tendencies. The fact that society discriminates against homosexuals lends further credence to their testimony, for in light of that bigotry, nobody in his or her right mind would ever choose homosexuality over heterosexuality.

Jewish law takes such evidence very seriously. Although homosexuality is not an illness, according to all of the relevant professional organizations, it is a feature of a homosexual’s being that he or she is likely to know better than anyone else. In that sense, it is akin (although not equivalent) to the case in which Jewish law recognizes a patient’s need for food on Yom Kippur: “Wherever the person says, ‘I need it,’ even if a hundred [physicians] say that he does not need it, we listen to him, as Scripture says, ‘The heart knows its own bitterness.'”

Thus even if homosexual desires are culturally as well as biologically generated, and even if some people would then claim that the culture must be changed to deter homosexuality in some way, for the individual homosexual those desires are already a fact of his or her existence. Moreover, in line with this talmudic precedent, the homosexual himself or herself provides the most reliable evidence for his or her orientation, and on the best of medical and psychiatric authority, it cannot be altered. The 1973 stance of the American Psychiatric Association, reaffirmed and strengthened in December 1991, is that however a person’s sexual orientation is fashioned, it is not a matter of choice. Moreover, “There is no evidence that any treatment can change a homosexual person’s deep-seated sexual feelings for others of the same sex”; and furthermore, one should not try to do so, for “homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities,” and “gay men and lesbians who have accepted their sexual orientation positively are better adjusted than those who have not done so.”

The combination of these sources of evidence, it seems to me, necessitates a rethinking and recasting of the law, for if anything is clear about the tradition, it is that it assumed that gay behavior is a matter of choice. Otherwise, a commandment forbidding it would logically make no sense–any more than would a commandment that prohibited breathing for any but the shortest periods of time.

Now of course it is logically possible to say to gays and lesbians, as some rabbis writing on the subject have said, that if they cannot change their homosexual orientation, they should remain celibate all their lives. That result, however, is downright cruel. Moreover, I find such a position theologically untenable. I, for one, cannot believe that the God who created us all produced a certain percentage of us to have sexual drives that cannot be legally expressed under any circumstances. That is simply mind-boggling — and, frankly, un-Jewish. Jewish sources see human beings as having conflicting urges that can be controlled and directed by obedience to the wise laws of the Torah; it is Christian to see human beings as endowed with urges that should ideally be forever suppressed. To hold that God created homosexuals to be sexually frustrated all their lives makes of God a cruel playwright and director in this drama we call life, and our tradition knew better. It called God not only merciful but good. God’s law, then, must surely be interpreted to take those root beliefs of our tradition into account. Jewish theology and law are not two disparate realms; here, as always, they must be interpreted to reflect each other.

Furthermore, it seems to me that to ask gays and lesbians to remain celibate all their lives is not halakhically required. If gays and lesbians are right in asserting that they have no choice in being homosexual–and, given the widespread discrimination in our society against them, I have no reason to doubt them in this claim, and indeed every reason to believe them–then they are as forced to be gay as straights are forced to be straight. That is, gay men can no more extirpate their sexual or emotional attractions to other men and cultivate sexual and emotional attractions of a romantic sort toward women than straight men can expunge their sexual or emotional attractions to women and redirect them toward men–and, of course, the same thing, mutatis mutandis, is true for lesbian and straight women. We are all equally “forced” (anoosim) in our sexual orientations.

What are the legal consequences if one is compelled to violate the law? Normally, Jewish law maintains that the person is exempted from any punishment even though the act itself remains forbidden (patur aval assur) (Babylonian Talmud, Bava Kamma, 28b).Thus, if at some future time this person or any other adult Jew engages in the act without being compelled to do so, he or she would be totally liable at law for the infraction.

The category in Jewish law of patur aval assur, however, normally applies to cases where the compulsion is temporary. The classical case in the Mishnah is that of the person who vows to eat with his friend but is prevented from doing so because the friend or his child became ill or because a rising river prevented the one who took such a vow from reaching his friend’s residence. As Rabbenu Nissim explains the passage, the Mishnah’s cases are specifically cases where there is not full compulsion and yet the person is automatically freed of his vow without the need to go to a sage for release from it, for, as Rabbenu Nissim says, “it never occurred to the one exacting the vow that it would apply if something happened such that one could not fulfill it.” The word used to describe what happens to the vow in the first Mishnah of that chapter, in fact, is “hittiru” (they unfastened [released] it), the verb form of “muttar” (permitted), a considerably more accepting evaluation of the failure to fulfill the vow than patur aval assur (freed of liability but still prohibited). The Talmud, though, does not go that far. “When a person is compelled,” explains Rava, even in these temporary ways, “the All Merciful One frees him [from any punishment] (ones rahmana patreih) (Babylonian Talmud, Nedarim, 28b).”(Notice the theological language embedded in the law on this issue.)

What would happen, however, if the person could never fulfill the commandment because he or she is always compelled? The closest parallels to such a situation are those where our human bodies compel us to do something. That is true, for example, of our needs to eat, to eliminate waste, and to have sex. In each case, Jewish law assumes that we cannot, and indeed should not, refrain from these actions altogether. It instead regulates the ways we are to meet those needs. It says, for example, that we may eat only according to the dietary laws and with proper blessings before and after meals; that we must cover our feces; and that we must restrict sex to marriage. This channeling of our natural energies into a specific path for their satisfaction is one way God makes us holy.

These analogues in Jewish law, then, suggest that if homosexuality proves to be an orientation beyond the person’s control, then the proper reading of Jewish law should be that homosexual acts, like heterosexual ones, must he regulated such that some of them are sanctified and others delegitimated–or perhaps even vilified as abominations. Putting the matter theologically, as the texts on compulsion do, if human beings can never reasonably require a person to do what is impossible for him or her, one would surely expect that to be even more true of God, who presumably knows the nature of each of us and therefore commands only what is appropriate to the various groups of us.