Homosexuality and Conservative Judaism - Conservative Halakhah On Homosexuality - The Dorff, Nevins, and Reisner Responsum

The Dorff, Nevins, and Reisner Responsum

One responsum, by Rabbis Elliot N. Dorff, Daniel Nevins and Avram Reisner, reduced the extent of traditional restrictions and substantially changed Conservative views on homosexual conduct. It characterized most such restrictions as rabbinic in character. It found rabbinic restrictions subject to reconsideration by the CJLS under its interpretation of the principle of Kavod HaBriyot, the Talmudic rule of legal reasoning that rabbinic (but not Biblical) restrictions can be overridden on the basis of "respect for others" or "human dignity". Holding that the concept of kavod habriyot interpreted as human dignity reflects Conservative Judaism's evolving understanding of human nature, it found rabbinic restrictions on homosexual conduct inconsistent with human dignity contemporarily understood and accordingly declared such restrictions lifted. Finding that it lacked authority under the kavod habriyot principle to lift biblical prohibitions, it analyzed the Biblical passages involved and found that male-male anal sex was the sole De'oraitha (Biblical) restrictions. It held that as a Biblical prohibition such conduct remained prohibited in Conservative Judaism. The responsum permitted Conservative rabbis to allow homosexual union ceremonies, and gave the option for Conservative rabbinical schools to admit and ordain openly gay and lesbian rabbis. It held that homosexual couples should be presumed not to engage in prohibiteed conduct in the same way that Conservative Judaism presumes that married heterosexual couples observe sexual prohibitions such as Niddah.

The responsum begins with a quote from Rabbi Abraham Yitzhak HaKohen Kook,

The light of the Messiah, when it blazes in the heart, teaches one to dignify all people: “It shall be on that day that the root of Jesse will stand as a sign to the nations, and peoples will seek him, and his consolation shall be dignity." (Isaiah 11:10)

After a discussion of contemporary theories of sexuality and a warning against promiscuity, the responsum interprets Leviticus 18:22 and 20:13 as pertaining to male-male anal sex only:

Ancient authors employed euphemism when describing sex, making it difficult to prove exactly what activities they understood to be included within these verses. Is it possible that the biblical prohibition called mishk’vei ishah and later, by the Rabbis, mishkav zakhur, includes actions other than anal intercourse? These verses have been variously translated, but almost all readers conclude that they prohibit anal sex between men, with the first verse addressing only the insertive partner, and the second verse including the receptive partner.

We have demonstrated that only one form of homosexual intimacy, anal intercourse between men, is prohibited at this level as an ervah. We must conclude that any Jew who seeks to fulfill the Torah’s commandments must avoid this forbidden act.

The responsum also insisted that Jewish law could not be interpreted any more permissively:

In contrast, our colleagues Rabbis David Fine, Robert Fine and Myron Geller have argued that the verses in Leviticus should be understood to prohibit only those sexual relationships that offer no possibility of marriage. In an age when gay marriage is permitted by some jurisdictions, they argue, the Torah’s ban is no longer universal. Although they present their reading as “the p’shat,” there is nothing simple or contextual about this interpretation. Nowhere does the passage mention marriage. The list of forbidden sexual relations includes menstrual sex, which can occur within a marital context. It is hard to accept that the Torah forbids bestiality only because it offers no opportunity for marriage. This reading, too, is sui generis — unsupported by either ancient or modern commentaries.

The responsum described rabbinic prohibitions on sexual relations as mere fences, many of which, it said, the Conservative movement had already lifted. It compared Rabbinic prohibitions on homosexual conduct to strictures on approaching or touching ones wife during the Niddah (post-menstrual) period:

However, our community does not enforce, and indeed does not accept, these severe prohibitions. We do not hold, as a matter of fact, that the laws of ”approach” are biblically mandated, but rather that they are in the category of rabbinic fences and borders that are all ultimately intended to protect against transgression of the fundamental biblical rules about sexual conduct. Just as the Sages of old exempted themselves from some of the severity of the laws against contact between the sexes between relatives,45 so have we concluded that average people can be trusted to maintain appropriate relations despite social kissing and hugging and moments alone together, even behind locked doors.

This teshuvah makes a distinction between a Torah mitzvah and later rabbinical fence laws. It argues (page 8) that:

"We conclude that there is only one prohibited sexual relation of arayot among homosexual behaviors, which is anal sex between men, and that other restrictions have no basis in biblical legislation. ...While some readers might conclude from the texts reviewed above that Jewish law imposes a universal and undifferentiated ban on all homosexual intimacy, we must emphasize the nuances found in this literature. ...The Torah’s most severe sexual prohibitions are identified as ervah (plural: arayot). In antiquity, these were punishable by death as well as by the severe divine penalty known as karet. Of these sexual prohibitions alone did the rabbis teach, yeihareig v’al ya’avor, that one should die rather than transgress. We have demonstrated that only one form of homosexual intimacy, anal intercourse between men, is prohibited at this level as an ervah..."

The responsum questioned whether requiring celibacy for homosexuals was feasible, quoting Deutoronomy 30:11-14:

For this mitzvah which I command you today is not too grand for you, nor is it far away. It is not in heaven, that it be said, ‘who will ascend to heaven to get it for us, and teach us how to do it?’ It is not across the sea,...

The responsum invoked and extensively commented on the concept of Kevod HaBriyot, "human dignity," noting that the concept is traditionally limited to Rabbinic enactments:

So great is human dignity that it supersedes a negative commandment of the Torah. Yet no sooner is this potentially radical principle enunciated than it islimited specifically to the commandment that establishes rabbinic authority, לא תסור “do not stray from the law they teach you right or left.” This concern for human dignity is cited in both Talmuds to override certain injunctions, but it is not considered capable of overturning an explicit biblical rule.

After an extensive discussion of this principle, the responsum applies it to declare all rabbinic prohibitions on homosexual conduct overridden, leaving only what it finds to be the biblical one:

It is not possible to set aside the explicit biblical prohibition on anal sex that is stated twice in Leviticus and frequently reaffirmed by the Rabbis. As we have shown, the kvod habriot principle supersedes rabbinic, not biblical law. Of course, there is a theoretical way to overturn biblical law via the legislative mechanism of takkanah (decree). We do not find this mechanism to be appropriate in our case, because takkanah requires the consent of the majority of the population, and this subject remains quite controversial in the observant Jewish community.

However, the rabbinic restrictions upon gay men and lesbian women that result in a total ban on all sexual expression throughout life are in direct conflict with the ability of these Jews to live in dignity as members of the people of Israel. For this reason, the halakhic principle of gadol k’vod habriot must be invoked by the CJLS to relieve their intolerable humiliation. We must make open and rigorous efforts to include gay and lesbian Jews in our communities, to provide a proper welcome and a legal framework for the normalization of their status in our congregations.

In conclusion, the responsum declined to rule on the status of homosexual relationships, but declared that "the celebration of such a union is appropriate."

We are not prepared at this juncture to rule upon the halakhic status of gay and lesbian relationships. To do so would require establishing an entirely new institution in Jewish law that treats not only the ceremonies and legal instruments appropriate for creating homosexual unions but also the norms for the dissolution of such unions. This responsum does not provide kiddushin for same-sex couples. Nonetheless, we consider stable, committed, Jewish relationships to be as necessary and beneficial for homosexuals and their families as they are for heterosexuals. Promiscuity is not acceptable for either homosexual or heterosexual relationships. Such relationships should be conducted in consonance with the values set out in the RA pastoral letter on intimate relationships, “This Is My Beloved, This Is My Friend”: A Rabbinic Letter on Human Intimacy. The celebration of such a union is appropriate.