Homosexuality, Choice, and Jewish Law

If homosexuality is not chosen, then there is precedent in Jewish law for condoning it.

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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.

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Rabbi Elliot N. Dorff

Rabbi Elliot N. Dorff is Rector and Sol and Anne Dorff Professor of Philosophy at the American Jewish University in California.