Conservative JudaismHalachaHuman RightsKi Tisa

Ki Tisa 5766 — Ordaining Gays and Lesbians

 Surely the greatest treasure the world has ever known was the original two tablets of the Ten Commandments.

These were no ordinary pieces of stone with a little of writing engraved on them. In this week’s Torah portion, Ki Tisa, we are told that tablets were ma’aseh Elohim, they were the work of God—the Torah specifies that the tablets were the writing of God, engraved upon the luchot, the tablets. In a poetic verse, the Torah tells us that these luchot were written b’etzbah Elohim, by the finger of God. Moses did not write down the Ten Commandments in their original form—they were written directly by the hand of God, on materials supplied by God, a gift as is from God to Man to with no intermediary.

There are many Midrashim which attest to the amazing and magical nature of the first set of the luchot. The Mishnah in Pirkei Avot records that the luchot were among ten things created on the eve of the very first Shabbat…they were created toward the end of day six of the six days of Creation. They have been in existence, but not revealed, since the time Man first walked the world.

The Midrash in Shir Hashirim Rabbah says they were of a miraculous nature—they were made of hard stone, yet they could be rolled up like a Torah scroll. R. Abun says they were hewn from the orb of the sun.

The Zohar, the primary text of Kabbalah, Jewish mysticism, elaborates on the description. The Zohar tells us that the tablets were not engraved, but the letters fluttered on them, visible in two colors of fire, white and black, a union of right and left—of “length of days in her right hand and in her left hand riches and honor.” White fire for mercy, black fire for power and judgment. R. Judah says the two tablets appeared like one, with one section of five superimposed on the other five so that mercy and judgment are joined together. R. Isaac said they were originally two rough-hewn sapphire stones upon which God caused a wind to blow, smoothing them and transforming them into the two tablets. R. Judah said, no, they only looked like sapphire, but in reality they were a completely novel form of creation, as they were the work of God. R. Simeon says they actually existed from before Creation began, and were perfected on the sixth day of Creation, formed from the supernal dew which issues forth from the Holy Ancient One. R. Judah says the luchot were pierced, the writing could be seen from either side, an engraving within an engraving. R. Abba says you could see from one side to the other side and read what was written on it. Engraven all the way through, the letters that make a closed loop were miraculously held in place floating in space.

Wow! Pretty amazing. And why all these fancy special effects? R. Eleazar said “They were written miraculously in order that every man might discern that it was God’s writing.” People would have no other way to explain their miraculous appearance, other than to admit that they were the work of etzbah Elohim, the finger of God Himself.

Sure, the whole world is created by God – but the rest of the world was created following a particular set of rules. God made a miracle out of the Ten Commandments, creating them in a way that their appearance clearly defied all the normal rules.

And God gave this most precious, most amazing gift to Mankind. He gave them to Moses.

And what happened?

In a fit of anger, Moses destroyed them. The most amazing thing ever created, the most precious physical gift God gave Mankind—smashed to smithereens. They could not endure.

This week’s Torah recounts the embarrassing episode of the Golden Calf – how while Moses was up on the mountain, the people were down below whoring after an alien God. After God and Moses calm down, wipe out the instigators, and are appeased, Moses goes back up the mountain.

God does not just hand him a wonderful amazing new set of luchot. God instead decides to involve Moses in the process. For the second set we are told “And the Lord said to Moses, k’tav l’cha et hadavarim haeleh, write these words; for according to these words I have made a covenant with you and with Israel.” Moses sat up there on the mountain another forty days and nights, and he, Moses, wrote the words upon the luchot.

The first set of luchot—the ones written by the very finger of God—lasted about ten minutes once they were given over to Mankind. The second set—the ones written by Moses—endured and endured. The people didn’t even have time to accept the first set before they were off sinning. They accepted the second set, and since that time we have reaffirmed over and over our acceptance.

Why they difference?

We are not angels. We are not perfect. We have flaws and we have free will. We are stubborn, we are stiff necked, and we don’t accept things that are just imposed on us from others, not even from God, without having ourselves somehow involved in the process.

The second set may have had their source in God, but we, people, were involved. The second set of luchot was a joint venture between God and Man. God may have provided the materials and the ideas, but Moses wrote them down. There are a few differences between the way the Ten Commandments are recorded in the book Exodus and the way they are recorded in the book of Deutoronomy. Some would consider it heresy to say this, but is it possible that Moses did a little editing the second time?

Revelation is a joint venture. Yes, as it says in the Psalm, Torat Hashem temimah, the Torah of God is perfect. But when God gave his Torah to Moses on Mt. Sinai, he gave it to a person. He gave it within the context of Moses’ time and place, and Moses filtered his perception of God through the reality of his life. The Midrash tells us that the other prophets saw God through a dark glass and Moses through a clear one, but Immanuel Kant assures us that no matter how clearly you see, you still filter reality.

Moses wrote the Ten Commandments on tablets of stone—if God gave me the Ten Commandments today I’d probably write them in my Treo.

At the heart of the Torah are the words and ideas of God. Those words and ideas, from day one, have been understood through the vehicle of people. When God tried to give us His words directly, it didn’t last. We need to be involved in the process.

In understanding God’s word, process is hugely important. How do we decide what God wants us to do? How do we work with God to create the luchot that will endure?

For the last two thousand years, rabbis have been the ones who wrestle with our Torah, our sacred texts, on the one hand, and the challenges and issues of the day on the other hand, as we try to answer the question “what does God want us to do?”

The Torah is the Constitution of the Jewish people. We believe it contains God’s revealed word to Mankind. Does that mean it is impossible for the rabbis to make a rule that runs contrary to the word of the Torah?

The Talmud brings an amazing story known as the tanur shel akhnai. R. Eliezer and his colleagues were having a heated argument about whether a particular oven was ritually pure or impure. R. Eliezer was certain that he was right, and God was on his side. So after he brought forward every imaginable argument, and still was not accepted, he said, “if the halacha, the law, agrees with me, let this carob tree prove it!” And immediately the carob tree moved 50 yards away. The rabbis said, “we don’t bring proof from carob trees.” R. Eliezer said, “if the halacha agrees with me let the stream prove it!” And immediately the stream started flowing backwards. They responded “you can’t bring proof from a stream of water.” R. Eliezer tried again, “if the halacha agrees with me, let the walls of the study hall prove it!” and the walls started to fall in, and R. Yehoshua rebuked them, saying “what right do you have to interfere in a debate of the rabbis?” and they stopped falling in his honor, but stayed bent in R. Eliezer’s honor. Not one to give up easily, R. Eliezer said “if the halacha agrees with me, let if be proved from Heaven” and a Heavenly Voice cried out “why do you argue with R. Eliezer, seeing that in all matters the halacha agrees with him!” R. Yehoshua stood up and said, “lo b’shemayim he, it is not Heaven!” R. Jeremiah explained this means the Torah had already been given at Mt. Sinai. We no longer follow attention to heavenly voices, because it is written in the Torah “you shall follow the majority,” meaning the law is decided by the majority. The Talmud continues and says God laughed and said “my sons have defeated me!”

That authority given to the rabbis has been used many times to issue rulings that run contrary to teachings in the Torah. When it came to the rebellious son, which the Torah says we should stone to death, the rabbis put so many restrictions around it that it became impossible to implement. They did the same thing for capital punishment in general. When the special dye techelet became rare, the rabbis said no one will have techelet in their tallis, even though the Torah says you shall put a strand of techelet on the fringes of your garments. In the year 1000 Rebbeinu Gershom banned polygamy, even though it is clearly permitted by the Torah.

But those are all cases of shev v’lo ta’aseh, sit and do nothing, either not doing something the Torah allows, or forbidding something the Torah permits. It seems to many people to be more radical to permit something the Torah forbids. Can the rabbis do that too?

The answer is yes. There is a principle in formulating Jewish legal decisions called pe’amim she-bitullah shel Torah zehu yesodah, sometimes the annulment of the Torah is its fulfillment. The Talmud brings a teaching from Resh Lakish, who said “There are times when the annulment of the Torah may be the foundation of the Torah, as it is written (in this week’s parsha), ‘which you have broken’ (asher shibarta). The Holy One Blessed be He said ‘yesher kochacha, more power to you, for breaking them.’”

As Rabbi Joel Roth explains, “when the ultimate goals of the Torah would be better served by its abrogation, even in its entirety, it is within the purview of the sages to take that step.”

When God’s will is served by overturning the Torah we can overturn the Torah.

The most contentious issue currently facing the Conservative movement is whether or not we should ordain gays and lesbians. The current policy is “don’t ask—don’t tell.” If someone who is gay stays in the closet throughout rabbinical school they can be ordained, and no one will go on a “witch hunt” to try and out them. But if they come out of the closet they get thrown out of rabbinical school. The movement also strongly discourages Conservative rabbis from conducting commitment ceremonies for gays and lesbians, although we can if we so choose as it is within our authority to decide that for ourselves.

So how does the Conservative movement make such a difficult decision? It gets referred to the body which functions as our highest rabbinic court, the Committee on Jewish Law and Standards. There are 25 voting members of the committee, all rabbis, and five non-voting lay representatives and one non-voting cantor. Enshrined in the Constitution of the Rabbinical Assembly is a guiding principle for the Law Committee: any Jewish legal opinion, teshuva, which gets six votes of support on the Law Committee is an “official position” of the committee. We are a pluralistic movement. There are teshuvot which say you count women in the minyan, and there are teshuvot which say you don’t. There are still some non-egalitarian Conservative congregations that do not count women in a minyan or allow them to read Torah. There are teshuvot which say it is OK to drive to the synagogue on Shabbat, and ones that say it is NOT OK. Such pluralism has been a hallmark of the Conservative movement—the ultimate decision is up to the individual rabbi as mara d’atra, “master of the place,” decision maker for his or her congregation.

In the debates over the status of gays and lesbians, there are those who have argued that this is too important an issue to be decided by conflicting opinions that garner six votes. There are those who say that to condone homosexual behavior is to l’akor d’var min Hatorah, to uproot something from the Torah, which is legislation, which should require more than a small minority of votes.

Last week both the Forward, a New York based Jewish paper, and the New York Times reported on procedural changes in the Law Committee. The Law Committee adopted a rule whereby an opinion that was a decree, a takanah, that uproots something from the Torah must pass with a 60% majority. The Executive Council, which is the Board of Directors of the Rabbinical Assembly, has instead imposed an 80% threshold to approve a takanah.

The practical effect of this is that any teshuva changing the status of gays and lesbians in our movement that the Committee deems a takanah will fail. The status quo will remain in place for gays and lesbians.

As I said earlier, “in understanding God’s word, process is hugely important.” I believe since the Rabbinical Assembly’s Constitution calls for six votes being a valid opinion, to change that rule would require a Constitutional Amendment.

Next week I will be attending the Rabbinical Assembly’s annual convention, which this year is being held in Mexico City. I’m not going to be sitting around drinking Margaritas for a week. I am bringing with me a resolution calling on the Executive Council to nullify the new takanah procedure unless they bring a Constitutional Amendment which can be voted on by every rabbi who belongs to the RA. I have had 40 colleagues sign on sponsoring my resolution, which will be discussed at the meeting next week.

It very well may be that for such a momentous change, something more than six votes on the Law Committee is appropriate. I would suggest that if the movement is going to say on certain issues we want a greater expression of support, we turn to the traditional standard enshrined in the Torah: “you shall follow the majority,” and not invent a new requirement for a super-majority.

This week’s Torah portion reminds us of the importance of process. It reminds us that the only Torah that endures is the Torah that is a joint venture between Man and God.

I do not want to see procedural techniques used as a way to avoid ordaining gays and lesbians. The Torah’s values of love, compassion, and even respect for the value of family will all be better served by the rabbis welcoming committed gays and lesbians into our institutions and communities. Regardless of what it says in Leviticus chapter 18 verse 22.

As I prepare to head off to the convention, I ask for your blessing.

Harachaman, Compassionate One, fill the rabbis and leaders of the Conservative Movement gathering in Mexico City next week with the spirit of Your Divine wisdom. Help them remember to debate l’shem shemayim, for Your sake, and guide them to find the right answers that reflect Your will,


Barry Leff

Rabbi Barry (Baruch) Leff is a dual Israeli-American business executive, teacher, speaker and writer who divides his time between Israel and the US.

Leave a Reply

Your email address will not be published. Required fields are marked *