Wednesday, October 26, 2016

The Biggest Challenge to Faith of Our Time Has Four Parts: Halacha, Hashkafa, Pastoral and Values

Guest Contribution by Rabbi Michael J. Broyde

Rabbi Michael J. Broyde
I am pleased to host the thoughts of Rabbi Michael J. Broyde on one of the most controversial subjects of our time. I ask only that any comments be based on the substance of the post and not an any personal issues. Ad hominems are not permitted here and any comments that have even a hint of such an attack will be completely deleted. As always the views expressed by the author do not necessarily reflect my own.


The Biggest Challenge to Emunah of Our Time, by Rabbi Ari Segal, is worth reading: he argues that the issues of Orthodoxy’s relationship with LGBT is the central ideological challenge of our era.  As an initial matter see “Homosexuality and Halacha: Five Critical Points co-authored with Rabbi Shlomo Brody and published many years ago in the Jewish Press. That article does not address Rabbi Segal’s points directly, but it touches on many related points and its theme in this letter.

Three separate issues drive Rabbi Segal’s discussion.  The first is halachic, the second is philosophical and the third is pastoral.  I discuss each in turn and my final thoughts on values are in the penultimate section.  (In this essay, I do not deal with “L” or the “T” for now in “LGBT”, as there is a place for “T” in a halachic society and the “L” can be approached with a variety of halachic tools unique to that (most likely) rabbinic prohibition. Indeed, “T” maybe even has a better place in halacha than in the common law, but both of these are too complex for now and are worthy of a further essay.)


The halachic issues are clear.  Male same sex intimate relationships are a Torah violation of Jewish law.  The issue here, however, is not how to be gay and Orthodox. Engaging in sinful conduct does not stop one from living an otherwise halachic life.  Indeed, at some basic level, each of us asks God every day to forgive us for our sins and let us live, so that we all can continue to do other good deeds. All of us regret our sins, and seek virtue, even if we cannot stop what we do that is a violation; we try to do good. Many people live in the pale shadow of Godliness as well; struggling to be better, and not always succeeding continuing to endeavor in the pursuit of virtue.

In the case of homosexual attraction, this endeavoring to live a virtuous life is compounded by difficulty, first discussed by Rabbi Norman Lamm, that people who experience exclusively same sex attractions are under some duress with respect to their choices and should be treated under the halachic rubric of one who is under duress.  That approach does not generally permit the conduct as a matter of halacha, but it does provide some flexibility in analysis to allow communal participation.  Orthodoxy has always had flexible doctrines about welcoming transgressors into the community without denying that the conduct is a violation of Jewish law.  That is the case here as well.  See the very worthwhile remarks of the late and great Rabbi Aharon Lichtenstein zt”l.


Philosophical value compatibility is less clear cut.  There is some philosophical virtue in the basic approach of one of my rabbinic colleagues (who asked not to be identified) that:

As Rambam teaches in the Moreh, the Torah is given for the majority of cases in history and sometimes individuals suffer. So what if one were to conjecture that the Torah prohibited all homosexual congress because it wanted sexual expression to be limited to the marriage arena and not outside of it in any way and focused on procreation or that potential? In majority homosexual union would be outside of the established relationships, sometimes would be degrading, sometimes would be to dominate etc. But the Torah made a kind of biblical lo plug that even if one could create a loving monogamous relationship in the context of homosexual love, it was still forbidden because of the overwhelming majority of cases. Thus, the Torah makes an absolute statement and we are bound by that. But in the eyes of God, the person who is a gay and monogamous is viewed differently and will be understood on those terms, even though in the real world we cannot celebrate such a union or give it equal legitimacy to heterosexual marriage. It obviously doesn't change the Jewish law on the ground but maybe allows people to think about their place in the community. It also allows us to recognize that while we cannot sanction or encourage homosexual behavior, we certainly see a monogamous, committed relationship with companionship and loyalty as infinitely better and more valued than a promiscuous homosexual lifestyle of hooking up that is disconnected from family and commitment.

This approach encourages people to build a life as consistent with Torah values as possible without diluting the idea that such conduct is prohibited.

Of course, the philosophical problems with this approach are clear also,[1] and I might be inclined to a religious approach to this problem which is grounded in biological evolutionary views to explain same sex attraction as much as the view of Rambam in the Moreh.  In this approach, a tendency to homosexuality is genetic and along a spectrum with having some amount of the homosexual genetic makeup being a good thing.[2]  Of course, like all reasons for commandments, there is an aspect of speculation present and I am uncertain of more.


On a pastoral level, it is completely reasonable that a synagogue may choose to be religiously available and seeking to serve a community that is not fully observant of Jewish law.  Gay people are welcome in many Orthodox institutions and we have many tools in our halachic tool box to avoid condemning individuals. Our article in the Jewish Press notes:
Even as halacha clearly labels the act a sin, Judaism does not seek to label the actors as evildoers whom we must shun. The halachic tradition has a longstanding policy of diverse attitudes to transgressors, and only in the most rare of circumstances does it mandate excluding people from the community, especially for wrongdoing that does not explicitly harm others. Some communities have expectations that all of their members maintain total Orthodox practice. Other communities maintain more open membership standards, sensing a need to create a place for all to come and worship, including those who drive to synagogue on Shabbat, do not observe taharahat hamishpacha (family purity restrictions), eat out in non-kosher restaurants, or even cheat in business. As in the case with Shabbat violators, many communities will find it more appropriate to welcome gays who remain discreet about their personal activity and who respect the Orthodox setting, with no aim of sparking denigration of Torah law.

Of course, provocateurs with anti-halachic agendas will find themselves less welcome in almost all synagogues, and rightly so. The larger point remains that accepting a gay individual within one’s shul does not reflect any less commitment to halacha than accepting an intermarried couple.

Homosexuality is not much different than some other transgressions – there is a place within Orthodoxy for those who do not observe completely, and which sins are tolerated and which are not is mostly a social concern and not a halachic one.  If we can live in a community with people who openly cheat in business – where the Torah describes the person who cheats in business as a toeveah -- we can certainly live with people whose conduct (but not personhood) is described as a toevah also.

A Summary of these Three Sections

An interim summary is worthwhile before moving on. There are monogamous gay individuals who [like many others who violate Jewish law regularly] just want a practical accommodation so that they can function in a community guided by Torah and mitzvot without feeling ostracized or stared at or perpetually diminished.  This can be done on all three primary fronts: halachically, philosophically and pastorally if a community wants to make the accommodations.  This community will, at some level, look the many Orthodox synagogues around the world in which many congregants are not personally Orthodox, and the parking lot is open on Shabbat or people park around the corner, and the rabbi does not speak about certain topics, although if you ask him, he is happy to explain the Torah’s view in private.

From here, this article turns to a different issue that is related to values.

Values Compatibility

The rise of a cultural norm in which sexual liberty or sexual equality is core cultural value of our secular society could signal the end of a certain historical construct of Modern Orthodoxy and the beginning of a new flavor.

(It is important to be clear: the term "sexual liberty" or “sexual equality” is not referring to "what is legal" in secular society. I personally fully support a grander vision of gay rights under the law and always have, even before it was popular to do so.  Sexual liberty and equality is the idea that God approves of all sexual choices a person makes.  The Orthodox Jewish tradition cannot instruct our children thus.  Same sex relationships cannot be one of the many things fit under the category of tov shebeyefet be'ohalay shem – that the best of the world’s values and ideas should be welcomed in our homes.[3])

Many of us where raised thinking – and it mostly was correct in bygone era -- that the core of American legal, social, and ethical values was intellectually compatible with Orthodox Jewish values.  Very little filtering of important higher Western culture was needed in order to be an Orthodox Jew in this model.  It is quite possible that this era is over and the rise of sexual liberty and equality as a philosophical value of higher Western culture is a harbinger of that.

Above, some practical solutions concerning homosexual men and Orthodox community are suggested in practice.  On a values level, however, there is no solution. There is no honest place for Orthodox Judaism’s values within a modern Western world that deeply and robustly validates any sexual choice as equal as part of its higher culture and which views same sex relations as part of Mathew Arnolds “study of perfection”. On an ideological level, a community that sees gay and bisexual relations on par with heterosexual marriage and sees that idea as central to its world view is incompatible with a Modern Orthodox community.

Once we acknowledge that aspect of Orthodox Judaism’s values is incompatible with what is widely viewed as the best of modern western values, then we as a community need to focus not only on what we incorporate from modern culture, but also what and how we filter some values out.[4] We must become better at sharing with our community that there are aspects of modernity that we do not accept.  We have few tools other than our fundamentalism here, as the values are deeply incompatible and that fundamentalist tool will not work well in a general Orthodox Religious culture that claims Orthodox Jewish and Western values are always compatible.

If students press -- and Rabbi Segal is arguing that they are pressing hard -- we must abandon the basic idea of telling our children that Judaism and all that is part of higher western culture are compatible, since they are not.  Instead, we must teach our children – and ourselves – how to filter the values of the modern world to insure compatibility.  We must be more open and honest about what and how we expect our children to filter.  Raising our children in a society that ascribes to sexual values that we reject is harder than raising them in a society whose sexual values we broadly ascribe to.  Of course, same sex normalcy is not the only ideologically validated Western value that must be filtered out but it is much more ideologically central and prevalent than many others.[5]


We must share two messages.

First, almost all individuals can have a place in the Orthodox community.  Gay men certainly can find a place within Orthodoxy if they wish.

Second, not every value choice is compatible with Orthodoxy.  In this case, what cannot be harmonized with traditional Judaism are the ideas that same sex sexual conduct is morally neutral and that God does not care if one engages in this conduct or not.

Furthermore, if the acceptability of any sexual choice is now a central one to Western liberal thought, then this a bridge too far, and both sides would be better served with ideological distance.

The classical Modern Orthodoxy that Rabbi Lamm wrote about decades ago -- the idea that the central core values of our Modern Western world can be generally harmonized with Orthodox values –becomes less than completely true, if this idea of “sexual liberty” or “sexual equality” is a deep and core value of Western thought.

Most American ideas and ideals and Orthodox Judaism can be harmonized: from abortion to xenotransplants, but this one can not be done with any integrity at all.  It requires ripping the heart out of either traditional Judaism or Modern Western values or both, neither of which works well as a heartless corpse.

Of course, Orthodoxy will not end, and large swaths of Modern Orthodoxy will continue to function but the ideology of our community will change.  The tensions between the Modern and Orthodox part will become unbridgeable in part.  Better filtering methods must be introduced in order to maintain a stable Modern Orthodox community.

Please do not misunderstand:  Orthodox Judaism and Orthodox Jews can and will continue to function without much difficulty, practically – rather it is about value compatibility and religious orientation between our community and the Western world.

So too, there are practical approaches that work that welcome individuals and their families into the community: we all can welcome people who are incompletely observant or even argue that absent certain knowledge of sin, we can assume that no one is truly sinning. But these approaches will not suffice to harmonize our values with the ethos of the liberal Western ideology around us of sexual liberty and equality.

This issue could be the beginnings of the death knell of the one of the classical models of Modern Orthodoxy as we know it, since if sexual liberty is a core value of modernity [maddah], then Torah and modernity are not fully compatible.  It won't be Torah uMaddah but Torah and some filtered Maddah in this model, since a core value of modernity and maddah will be in some central aspects incompatible with the unanimous view of Torah.[6]  At the very least, we will move to the model in which it is clear that Torah umaddah means that we actively participate only in those facets of Western Culture that do not contradict Orthodox Judaism

Maybe we will need to move to a different model of secular education within Orthodoxy where we need not accept the basic ideas and ideals of western thought anymore and just take the things we need.  Maybe we can move into what Rabbi Lamm call a "more diligent sifting" mode of Western ideas, since he was aware from about 1990 onward of the fact that incompatibility was deeply possible in fact, which he called "Torah first, and then Maddah."

One pedagogic answer can be suggested flowing from this essay: The future of Modern Orthodox education is going to be quite different from the past – from now on, a central mission of Modern Orthodox schools is to teach its students how and what to filter.  We still live in a wonderful society with many spectacular virtues, from religious freedom to democracy and includes other values that the Orthodox should incorporate.  But, not all the values of our secular society are positive.  The mission of Modern Orthodox schools and Modern Orthodox educators for the next generation ought to be to teach students how and what to filter. Particularly in our educational system and in its outreach to parents, as well as in our campus work, we need to help people get a stronger spine to withstand some of the new storm winds blowing across society.

What Rabbi Segal wrote was honest and open and questioning -- but the silence of the Modern Orthodox leadership that he bemoans is because there is no answer of deep religious value from our Modern Orthodox community: value harmonization here is just not possible in the Modern Orthodox model. It might well be that other streams of Orthodoxy with other approaches can resolve this problem. But, I doubt it.  Simply put, to the extent that the Western world wants validation and not accommodation of sexuality liberty, no flavor of Orthodoxy has the tool of religious validation in their tool box.

A Personal Postscript

As I wrote this, I was reminded of the desperation Yeats must have felt as he wrote his poem "The Second Coming":

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Certainly, us Modern Orthodox harmonizers are silent in this case.  Like Aaron Hakohen, we are dumbstruck.  People always hesitate to answer with "abandon ship" as it is very sad to even ponder that possibility.  I want to cry even as just writing it. [7]

Michael J. Broyde is professor of law at Emory Law and a senior fellow at the Center for the Study of Law Religion at Emory University. 
Professor Broyde is ordained (yoreh yoreh ve-yadin yadin) as a rabbi by Yeshiva University and was a member (dayan) of the Beth Din of America, the largest Jewish law court in America and the founding rabbi of the Young Israel synagogue in Atlanta, a founder of the Atlanta Torah MiTzion kollel study program and a board member of many organizations in Atlanta.
Professor Broyde has published more than 75 articles and book chapters on various aspects of law and religion and Jewish law. \

[1]If this approach were a correct read of the will of the Almighty, an easier lo plug would have been to mandate an appropriate kiddushin for same sex couples.  Of course, the Rambam’s basic approach is that halacha (law) cannot adjust for the individual case; Rambam argues that this is in the very nature of law, so even God could not have mandated a different law that wouldn’t have edge cases.   But this is uniquely inapplicable in mattes of sexuality, since God created a nature that at least sometimes includes homosexual love (and in which many of those who have such an impulse, do not find love in heterosexual relationships). God could have chosen not to do such a thing which obviates the point of the Rambam here to a great degree.   Then just as some heterosexual relationships are good and some are flawed, so too would hold for homosexual relationships.  Indeed, one could claim exactly that the problems in same sex relationships is because society deprives them of the marriage writ, exactly flipping this approach on its head.
[2] In this view, same sex attraction was created [by God, if religious; by nature if scientific] exactly because it confers some positive values on humanity and reproduction which we all want in our community.  For a popular article on this approach, see this philosophical approach, the Jewish tradition would view people who have only same sex attraction as having too much of a good thing.
[3] One early reader asked:
I am wondering if the crisis is truly as bad as you suggest.  Do you think this is any different than the tension between Western values and Torah over gender equality and egalitarian values?  Would you also say:
There is no honest place really for Orthodox Judaism’s values within a modern Western world that views categorical gender-based discrimination for important communal roles as immoral.
Yet the MO community deals with it.  I think the values conflict over equality for women is arguably as deep as the values conflict over homosexuality, and it hasn't killed Modern Orthodoxy or Torah u-Madda yet.  So maybe there is hope.
I do not agree with this.  I think that most of the gender issues are solvable within the framework of halacha and that there is much less unanimity of the sources and thus much more flexibility.  Exactly because the sources are so monochromatic in their criticism of same sex activity and so much more ambiguous in the area of gender issues, these cases are not analogous.
[4] Of course, one should not idealize western culture of fifty years ago.  Rather, those aspects of Western culture [such as the banality of adultery in the 1950’s) were papered over because the best of western culture repudiated it.  The values were compatible, even if many people did not live the life high western culture expected.
[5] In this sense, premarital sexuality is a more common breach, but both halachically and practically a less serious violation.  Adultery is a more serious problem and an equally serious violation, but still is deeply lacking in ideological validation in secular society.
[6] See for example, the which notes simply and directly “Halakhic Judaism views all male and female sexual interactions as prohibited.”
[7]A friend raised as an Orthodox Jew who left over the same sex issues noted something very important.  He stated:
Most LGBT people don’t care what Orthodoxy thinks at all. This is a problem of the Orthodox community, not the LGBT community, per se. However, there are many gays and lesbians that care very deeply about where they fit in. They care about the functional implication for gay kids, families, and the ability of kids to come out safely. For the many gays who love Torah, they care about having a place in Orthodox society. So accommodation is fine.
He then added something very important:
Right now, when gay kids are struggling with their identities, they hear every nuance of what is being said. So your argument will be heard as “yeah, there’s some apologetics, but ultimately Orthodoxy rejects me”.
This is a real fear, but Orthodoxy seeks to reject no one, and it has a place for all kinds of people.
He then added something very worrisome that all need to grasp.
Much more serious, this kind of narrative that permits parents to avoid coming to terms with their child’s sexuality. So while you are trying to give the halachic and philosophical and communal fig leaf to the gay person, this last section gives the fig leaf to the parents (and teachers) to advocate for conversion therapy, doubt the kids’ sexual intuition and identity, ask for them to remaining closeted, and so on.  I know many people who have been and who are hurt by this dynamic.
There is truth to this claim and I am not sure how to honestly address it.  It is clear that conversion therapy does not work, and the closet is rarely an appropriate place to reside.  It is not clear how to write a single proper piece for (1) the Modern Orthodox who are bothered by this issue, (2) the Orthodox adolescent homosexual who is struggling and (3) the general community who is reading.  I can only pray that I have struck the right balance and seek forgiveness for any errors in formulation.