Good Intentions - But Wrong

Rabbi Zev Farber

It seems that the gay marriage is becoming ever more acceptable in society. From an NBC news website:

In a move described by one scholar as “inconceivable” just two years ago, 75 Republicans have signed the brief to be filed in the case of Proposition 8, a California law banning same-sex marriage, The New York Times reported. The nation’s high court will hear arguments on the law in late March.

Four former governors, including Christine Todd Whitman of New Jersey, and members of President George W. Bush’s cabinet, such as former Commerce Secretary Carlos Gutierrez, signed the brief, the Times reported. Some of those, such as Meg Whitman, who ran for California governor in 2010, had once opposed same-sex marriage.

I have stated my position on this issue many times. Even though it seems inevitable that it will become the law of the land - I am opposed to legalizing gay marriage. This has nothing to do with how to treat people who have same sex attractions. My position on that is clear. They should be treated as equals among us. And there ought not be any discrimination or disparagement of them. Nor should we judge them. It is not our job to judge what other people do in the privacy of their own homes. Even if we suspect sinful behavior. What two consenting adults do in the privacy of their own home is between them and God.

When it comes to interacting with openly gay people, we have an obligation to treat them with the human dignity that every one of God’s creations deserve. They are no less created in God’s image than people who are attracted to the opposite sex.  Who we are attracted to does not define who we are. To paraphrase Dr. Martin Luther King, we ought to judge people by the content of their character. Being gay is not a character issue.

But that does not make gay sex permissible or excusable. The Torah is very clear about that too. It is a very serious violation of biblical law. There is no way around that no matter how compassionate we try to be. It is for this reason that I oppose gay marriage. Because the implication of that is to place a public imprimatur on behavior that is sinful. It is in effect Koshering a forbidden lifestyle. Making  gay marriage not just value neutral but something positive.

This ignores the underlying sinful behavior - completely removing it from the category of sin. By definition marriage gives a societal blessing a gay couple implying that that gay sex is as moral as heterosexual sex.  We are saying via legislation that we approve equally of both types of behavior. Gay marriage does not only permit gay sex – it virtually endorses it as a completely legitimate alternative to heterosexual sex.

I don’t blame gay people for wanting to be treated as completely normal in every way possible. No one likes to be stigmatized – even a little bit. The homosexual community wants the world to look at them in the same way as they look at  heterosexuals. As complete equals living a sin free lifestyle – same as heterosexual.

Much as I feel for their plight and their desire to be treated as normal, treating gay sex a sin free sex is not what the Torah intended by forbidding it.

This has nothing to do with how to treat gay people. But it has everything to do with how we treat gay sex. We cannot say it’s OK to have gay sex when it is not.

I know there are people who disagree with me on both sides of the issue. I have little patience for bigots who would deny human rights to a gay person and refuse to grant them any human dignity. But on the other side of the issue - sometimes one can have too much compassion and end up completely rationalizing away gay sex between two men. There is no doubt in my mind that it is a biblically forbidden act no matter what the circumstances are.

And yet well intentioned people are trying to rationalize the sin away entirety. This is the case with Rabbi Zev Farber. About a year ago he wrote an essay wherein he came up with a novel approach to gay sex that would completely take away any culpability for sin by two gay men engaging in it.

While acknowledging that there has been an evolution of sorts even among Charedim with respect to treating gay people with compassion, he felt that both an Agudah Statement as well as an RCA statement fell short of treating gay people fairly. The implication of both statements is that gay sex is still forbidden and that they must live celibate lives to avoid sin. Here is how he stated his problem:

I once suggested the following thought experiment to a colleague: “If, for some reason, it became clear that the Torah forbade you to ever get married or to ever have any satisfying intimate relationship, what would you do?” My own reaction to this question is: although part of me hopes I would be able to follow the dictates of the Torah, I have strong doubts about the possibility of success, and I trust that my friends and colleagues would be supportive of me either way.

His point of course is that it is unnatural if not impossible to ask a human being to deny his sex drive no matter what his sexual orientation is. And yet gay sex is a forbidden act according to the Torah. The vast majority of educated opinion is that gay people cannot change their sexual orientation. His solution is to apply a Halachic principle called Oness (pronounced Oh-Ness) Rachmana Patrei.  If one is forced to commit a sin, the Torah exempts him from any culpability. The obvious question is, why should a voluntary act of sex (of any kind) at any given moment be considered forced?

Rabbi Farber argues that when there is no Halachic outlet at all to satisfy one’s natural sex drive then at some point that drive takes over and must be satisfied. That makes it an Oness – forced. When a gay person succumbs – he therefore is absolved of any guilt. He is in effect forced by his own God given nature to act in a way that would be forbidden to heterosexual men.

The problem is that this argument eliminates the sin of gay sex in it’s entirely. Heterosexual men would hardly violate that law. And gay men are exempt from it. So why would the Torah even mention it? Furthermore this argument can be used for pedophiles too. It is well known that pdeophiles too cannot not control their attraction to children either. Oness Rachmana Patrei! Thereare of course reasons to forbid sex with minors. But the Onesss is still there… and we should not discriminate based his sexual orientation. Is there a soul anywhere that would agree with that?!

To Rabbi Farber’s credit, he does not advocate gay marriage in Judaism:

To be sure, calling something oness does not make the action halakhically permitted; it is not. Moreover, adopting the oness principle does not mean that halakha recognizes same sex qiddushin (Jewish marriage) – it does not.

The bottom line for me is that I think he errs in his use of the Halachic device of Oness Rachmana Patrei.  And I also believe that he errs in suggesting we encourage “exclusivity and the forming of a loving and lasting relationship-bond as the optimal lifestyle for gay Orthodox Jews who feel they are oness and cannot be celibate.”

It is completely wrong to encourage a lifestyle that is conducive to sinful behavior.  But I agree that we ought not be judgmental about it when we see it.