Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Wednesday, March 19, 2003
Very narrow, sectarian post coming up: about the Conservative Jewish movement's struggle over whether to give smicha (rabbinic ordination) to homosexuals. I had a conversation about this just the other day with a member of my congregation, so I was interested to read the Ha'aretz article.

First, some background. The major difference between Orthodox, Conservative and Reform on the status of Jewish law is as follows. (And apologies to those more knowledgeable than I for such a quick and dirty analysis). There is an established corpus of Jewish law that begins with the Torah text, the Mishnah (a late-Roman era legal code), and the Talmud (a commentary on the Mishnah, among other things), and extends through the ancient, medieval and modern decisors who have weighed in on specific legal questions, and codifiers who consolidated these decisions into codes of law. Probably the most important such code is the Shulchan Aruch ("the set table") which is about 500 years old, which omits much of the debate, exegisis and commentary and cuts right to the chase in a very decisive manner (and is, in that sense, a very modern text).

The Orthodox view is: this corpus of law is dispositive and cannot be overturned. Indeed, traditions that do not originate in the corpus can attain a law-like status over time. There is a role for living rabbis to clarify ambiguities and to decide genuinely new questions in a manner consistent with existing law, as well as to supervise the community and make sure that established law is carried out (this is particularly important with respect to the laws of kosher slaughtering, which are arcane). But there is no room for living rabbis to directly overrule the corpus of law, even if the basis for earlier decisions is no longer valid. (That said, living rabbis are capable of being remarkably creative, particularly in articulating how apparently decisive precedent is, in fact, narrower than it appears on first glance, leaving room for innovation. There is also frequently sufficient diversity among precedent for rabbis to respond creatively and pragmatically to modern challenges, within limits.)

The Conservative view is: the corpus of law is binding, but it can be overturned by a body of living rabbis, specifically: by the Rabbinical Assembly. This difference is why I sometimes say Conservative Judaism is to the Church of England as Orthodox Judaism is to Roman Catholicism: in each case, the dispute is really about the nature and scope of authority, but from that difference many other things follow. In any event, the Orthodox would say that only a Sanhedrin can overrule clear precedent, and that a Sanhedrin cannot be convened until the Messianic Age; the Conservative would say that the Rabbinical Assembly is in many ways analogous to the Sanhedrin. As a pragmatic matter, many Orthodox criticize the Conservative for paying lip-service to religious law, but in fact being willing to change the law whenever it conflicts with contemporary mores.

The Reform view is: the corpus of law is not binding. It is a spiritual resource for all Jews. Rabbis are, effectively, not legal decisors but spiritual leaders and guides to this corpus of tradition, from which each individual Jew is to construct a relationship to God through a unique understanding of Judaism.

So how does this play into the whole gay-rabbi thing? Well, the law with respect to at least certain homosexual acts is very clear: they are prohibited. Certain acts are prohibited in very strong language (you know the lines I mean). Other acts would fall under the rubric of general "lewdness" (as, indeed, all lesbian acts would) and are also frowned upon but much less firmly. (To give you an idea of how this technical stuff doesn't track our presuppositions: lesbian intercourse would, from an Orthodox perspective, be far less serious a transgression than intercourse with a menstruating woman.)

That being the case, the general feeling (and the decision of the RA in 1992) has been: how can you call someone a decisor of religious law if they show contempt for that law by their lifestyle?

I have always thought that this approach is totally inadequate. It is not reasonable to assert that Judaism does not have anything to say about how gay men should live. It is also rather contrary to Jewish approaches to sexuality to say that anyone should be totally celibate. It would seem, then, that Judaism leaves only two paths open for thinking about homosexuality: either (a) it must be overcome (cured, if you will), or (b) if this is impossible, it must be accommodated. I don't see a third alternative. And if it is to be accommodated, that means having a structure for accommodation.

Such a structure does exist. There is a traditional doctrine with respect to sins committed under "compulsion" which would encompass both internal and external compulsion. Sins which are victimless crimes can be excused under this rubric. And if this doctrine is applicable in the case of male homosexuality, then I don't understand why gay men could not be ordained as rabbis. If they really are compelled (internally) to be as they are, then there should be a way for them to live as they are that is not construed as sinful. And if it is not sinful, then in what sense are they being unfaithful to halacha?

I recognize that I'm opening the same can of worms here as is being opened in the case of state-sanctioned gay marriage. I can think of two other grounds on which to exclude gay men from the rabbinate: (1) that, even if they effectively operate under a heter that accommodates their lifestyle, they should be understood as "impaired" and therefore ineligible for religious officiation; (2) that, even if they are technically eligible, admitting them would give people the wrong idea about what is permitted, and therefore they should be excluded. I think both these arguments are rebuttable.

The first falls because rabbinic ordination is not, I think, a ritual position. Perhaps a gay priest cannot perform the priestly blessings (a vestige of the much more substantial priestly function that existed at the time of the Temple in Jerusalem); I'm not going to opine on that. But no one would say that a blind man cannot be a rabbi, even though a blind priest could not officiate at the Temple. So why exclude a gay rabbi on these grounds?

The second falls because it is somewhat circular. Because there is no accommodation of gay individual as gay in Judaism, accommodating them would confuse people, who would think that the law had been changed. But if an accommodation is established, then the contours of this accommodation will become comprehensible to people, and the concern should abate. Moreover, there is a strong counter argument: that forbidding what need not be forbidden encourages contempt for the law. This is a real concern in the Conservative world. In the Orthodox world, people one-up each other to see who can be more strict. But in the Conservative world, the failure to articulate religious law in a way that is persuasive just convinces people that the law should be ignored. This is not an argument for simply making the law into whatever people want it to be. It is an argument against the purely pragmatic rationale of forbidding change because change would be confusing and disruptive.

I note that Ha'aretz cites a nominally Conservative rabbi who performs gay "marriages" and has not been censured. As the article points out, this is far more radical than anything officially countenanced by Reform Judaism, and far more radical than ordaining gay rabbis. It is, indeed, completely indefensible; it's effectively a parody of the Jewish marriage ceremony. I think there should be some accommodation in Judaism for uniting gay couples. But to use the formulas for Jewish marriage to do so is as much an insult to Jewish tradition as to use those formulas to marry a Jew and a non-Jew. I can't imagine why this guy hasn't been called on the carpet.

But then, it's often this way in Conservative circles. Ordaining women as rabbis was a far less radical step than counting women as part of the minyan (the prayer quorum), or allowing them to lead prayer services. There is precedent in the tradition for women to act as legal decisors, when they had the proper education. It is a much bigger job to overturn the tradition that women, being excluded from the responsibility to form a prayer quorum, are nonetheless permitted to be counted in one. (I'm not going to go into details; trust me that it's heavier lifting.) Nonetheless, counting women in the minyan passed with nary a ripple through Conservative congregations, while ordaining women rabbis caused a (minor) split in the movement. All this does is confirm what the Orthodox say about us: that we don't care about the integrity of the law, just about keeping a romantic connection to an unlived tradition. (Another way of putting it: we want our rabbis to be observant so we don't have to be.)

My bottom line: the real challenge for Conservative Judaism is to approach homosexuality in a frank manner and with halachic integrity. Deciding in a liberal or a conservative direction because of political considerations would be disastrous. I believe that such an approach would leave open real routes to an accommodation of gay Jews as gays and as Jews. I hope the RA rises to the challenge.