“And YHWH spoke to Moshe, saying, “Speak to all the gathering of the children of Israel, and you shall say to them: You shall be holy, because I, YHWH, your God, am holy (Vayikra 19:1).”
So opens the the recently passed parsha Kodshim. This sentence, with its stark and challenging grandeur, is a favorite amongst Jews of all denominations. What is it to be Holy, Kadosh? The parsha does not offer definitions. Instead it offers a long list of examples: the Ten Commandments, ritual offerings to God, justice, caring for the poor and the infirm, treatment of women, food, the illegality of sorcery, and loving both one’s neighbour and the stranger as oneself.
All of these examples have led many to see holiness as laying in following the mitzvot in general and more specifically the ethical mitzvot which predominate here. In fact the mitzvot listed in this parsha fall into both the categories of bein adam l’havero (between one another) and bein adam l’makom (between people and God) and so we can infer a definition of holiness from this: right relationship with other human beings and with God. The mitzvot listed suggest one’s relationship with others should be one of justice, honour and kindness. One’s relationship with God should be ritualized and disciplined and should involve binding oneself through ritual and custom to God alone. It should also involve not taking life without offering it back to its source in a sacred way, as in the Temple sacrifice ritual. Incidentally one could argue that this extends the mitzvot here to a third category: bein adam l’hayyot (between humans and animals).
All of this seems interesting and edifying until we get to Vayikra 20:13: “And a man who will lie with with a male like laying with a woman: the two of them have done an offensive thing. They shall be put to death.”
How is “laying with a man like laying with a woman” fatally unholy?
It comes here as part of a recap of some sexual laws from the previous parsha (Vayikra 18:22). Together these two parshas outline a number of forbidden sexual relationships, most of them easy to understand. All of them are physically (genetically) or emotionally dangerous. Anthropologists tell us that there are semitic tribes that to this day do not have incest taboos, so apparently these laws were indeed necessary. Also there was the Egyptian custom of sibling marriage and anthropologists claim that some tribes in Canaan practiced ritual homosexuality, and that in at least some cases this involved male on male anal rape.
One possibility thus presents itself: these laws were partially intended to differentiate the Israelites from their neighbours. Rabbi Gershon Winkler has argued that these laws were intended to outlaw homosexual rape specifically because it was widely practiced in Canaanite temples.
This is possible, but doesn’t seem that strong an explanation. It does seem reasonable that the phrase “laying with a man like a woman” does refer to anal sex. This is the interpretation that Conservative Jews have adopted and they have ruled that homosexual romance and marriage are permissible but not anal sex between men.
The difficulty is: since Israelites didn’t practice temple prostitution or sacred orgies, why did this one aspect of Canaanite Temple practice need to be discouraged?
Rabbi Steven Greenberg has suggested that the problem is not anal sex but the use of other men not for their own sake but as a mere replacement for a woman. In his reading one should lay with a man like one is laying with a man, not like one is laying with a woman. This is a good drash, but seems unlikely as pshat (the literal reading) to me.
Richard Elliott Friedman has suggested that homosexual anal sex is outlawed here not because it is offensive to God but because it is offensive to Israelites. The verse says, “Do not do X. It is an offensive thing.” Friedman suggests that the Torah is in effect saying “Do not have homosexual intercourse. It is something people generally find offensive and you are trying to be a refined, disciplined, holy people. Therefore abandon it.”
This reading is somewhat plausible. It seems to follow, intentionally or not, a Maimonidean reading of the text. In Moreh Nevuchim Maimonides says that many of the mitzvot were given simply to refine people: he includes in this list the laws of kashrut and the laws of purity. Maimonides also views a major part of Jewish law as a concession to human perceptions: the laws of Temple sacrifice. Maimonides writes that if Israelites hadn’t been conditioned to need to make sacrifices by the religions of their neighbours, God wouldn’t have instituted the sacrificial laws. Maimonides argues that the sacrificial laws were given not to encourage people to make sacrifices, but rather with an eye to weaning them from the practice altogether.
This is in harmony with Friedman’s view that since homosexual intercourse is no longer viewed as an “offensive thing” we can now abandon this law.
I find Friedman’s argument appealing but am ultimately unconvinced. Homosexual intercourse was punishable with death: this seems quite a severe punishment for the sake of promoting a sense of refinement of character based on Israelite biases. The severity of the law seems to reflect both an awareness that homosexual intercourse was appealing enough to some to warrant strong deterrence, and a passionate concern on the part of someone to prevent its occurrence.
One other possibility is that homosexual intercourse was outlawed because it was perceived as against the way of nature. The Tanakh is filled with praise for the divine wisdom inherent in nature. Some of the laws, like those limiting breeding hybrid crops or mixing certain types of fabric, seem to reflect this. Another key law with respect to this is found in the verse which outlaws men and women adopting each other’s dress. This seems a clear example of a law attempting to preserve what are perceivable as natural boundaries. Perhaps this desire to respect natural boundaries grew out of the Israelite perception, unique in the ancient middle east, of the whole world being an expression of the wisdom of one benevolent God.
This presents two problems for us today. The first problem is that we now know that homosexual desires are not a perverse inclination of the human heart but a natural inclination grounded in genetic predisposition. We also know that it is impossible for homosexual men to be “cured” of their desires. The evidence suggest that homosexual desire is in fact natural. This seems to conflict with the rationale we perceived above.
If we agree that homosexual behaviour is natural than we might be tempted to conclude, with the Conservative movement, that homosexual romance that excludes anal intercourse is kosher. I myself am empathetic to this view. I am neither a posek (obviously!) or a homosexual, and I feel that the combination of both attributes would be ideal in judging this matter. Nevertheless, for what it’s worth, I think this seems a fairly equitable resolution of the conundrum for those committed to some form of traditional Jewish law. It preserves the halacha d’oraita (written law).
This still does not resolve our problems, however. Even if we do conclude that homosexual romance is permissible but not anal sex , how do we understand its being a capital offence? This capital offence is no more disturbing, however, then the death penalty for Shabbat violation. However uncomfortable it makes us the Torah threatens death for many offences we would not even consider criminal today, there is no escaping that it does.
On a practical level we know that the Talmudic Rabbis legislated exhaustive restrictions on the application of the death penalty which made it impossible to actually implement. Still, the question of why the Torah mandates such harsh punishment for breaking laws that seem comparatively minor remains.
Another difficulty is that understanding the ban as only extending to anal sex is not an option open to Orthodox Jews. For Orthodox Jews the only options are to abstain from homosexual romance entirely or to engage in some degree of homo-erotic love, thus violating what they consider to be Torah law, while otherwise observing the rest of the mitzvot.
Thankfully no-one is able to enforce the Bibilical death penalty anymore. With regards to the option of engaging in homosexual intercourse whilst otherwise being observant I am reminded of the words of orthodox Rabbi Simon Rappaport. He pointed out that to fail to observe this mitzvah is no worse than failing to observe any other. To judge those born with desire for other men, or to (has v’shalom) publicly condemn or persecute them, is as unacceptable as publicly shaming and assaulting those who talk during prayer or drive on shabbat. Sadly some fundamentalist thugs might advocate doing that these days, but it is clearly against traditional Jewish law.