Vayishlach 5767 — Wrestling with God

And Jacob was left alone; and there wrestled a man with him until the breaking of the day. And when he saw that he prevailed not against him, he touched the hollow of his thigh; and the hollow of Jacob’s thigh was out of joint, as he wrestled with him. And he said, Let me go, for the day breaks. And he said, I will not let you go, except you bless me. And he said to him, What is your name? And he said, Jacob. And he said, Your name shall be called no more Jacob, but Israel; for as a prince you have power with God and with men, and have prevailed.

I’ve been wrestling with God this week. Just as our ancestor Jacob wrestles with God in this week’s Torah portion, Vayishlach. Jacob is left alone, and wrestles with a man all night, until dawn. Jacob is injured in the struggle, and refuses to let the stranger go until he gets a blessing. The man – understood to be an angel – tells him “you will no longer be called Jacob, but Yisrael, for you have struggled with God and with men and have prevailed.

This past week the Conservative Movement did some mighty wrestling with God, and 25 our brightest and most dedicated rabbis did a lot of wrestling with each other, as they struggled to hear the voice of God and decide how gays and lesbians should be treated under halacha, under Jewish law. Halacha has traditionally held homosexual behavior to be a sin; the Bible tells us “a man shall not lay with a man as with a woman.” Up until now, the movement has said we should ordain people who are openly gay, and we should not perform gay marriages or even commitment ceremonies. Yet as gays and lesbians become more mainstream in secular society, as the clamoring for gay rights has increased in intensity, the movement was called on to readdress the status quo.

On Wednesday the Conservative Movement’s Committee on Jewish Law and Standards voted, 13-12, to allow the ordination of gays and lesbians as rabbis, and to support rabbis who choose to perform commitment ceremonies for gays and lesbians.

That same committee, that same day, voted 13-12 to maintain the status quo—which is to say we should NOT ordain homosexuals as clergy, and we should NOT publicly acknowledge or sanctify their long term relationships.

Confused? That split vote very much reflects the conflict I personally feel as well in a struggle between halacha and compassion. Socially, morally, ethically, culturally, I 100% believe it is appropriate for us to be inclusive towards gays and lesbians, and we should welcome gays and lesbians who choose to be observant Jews into our communities. We should encourage them to serve the Jewish people in any way they feel called.

At the same time, I am committed to living a life guided by halacha, which means I understand myself as commanded by God to live in accordance with God’s rules. As a rabbi I have the great honor, privilege, and responsibility of being a participant in deciding what those rules are – but the rules are not simply whatever some rabbi decides they are. In his teshuva (Jewish legal response) Rabbi Joel Roth wrote “For all of the breadth I believe that there is for pluralism within halakha, some decisions are outside those boundaries…we often affirm that our mission is to write the next chapter in the book of Jewish law, to be the next link in the unbroken chain. But, if we are to write that chapter, it must be recognizable as the continuation of the book, and not the beginning of a new one.”

And that’s the question I’m struggling with, that the Law Committee struggled with: is the more liberal teshuva a continuation of the book, or is it an abandonment of the traditional process?

Obviously one member of the Law Committee decided to vote for both. We are a pluralistic movement, meaning we accept diverse opinions. The rabbi who voted for both undoubtedly feels that both positions are halachically valid, and he wanted to provide support for people to follow either one.

But ultimately, that’s not an answer. As a movement, we either will or we won’t ordain gays and lesbians. An individual rabbi has to decide whether or not he or she will perform commitment ceremonies for gays and lesbians. But to support conflicting rulings I suggest means a posek (rabbinic decision maker) is not quite doing his job. Yes, eilu v’eilu divrei Elokim Chayim, these and those are the words of the living God, but at the end of the day a posek needs to come up with a p’sak, with a decision. Which is the right answer? Not just which is a valid answer among many valid answers. I would rather the vote had come out 13-12 in favor of one and 12-13 for the other. It seems a little ridiculous to have a majority that says we should change the rules and a majority that says we should keep the rules the same. So which is it?

Rabbi Joel Roth claims that the decision the Law Committee has taken goes outside the boundaries, undermining our authority as interpreters of God’s will—he believes the Law Committee has rendered itself halakhically irrelevant. So he resigned from the committee.

My ambition this morning is to summarize the arguments and briefly discuss the implications for the movement. It’s a complicated topic – I have spend quite a few hours in the last few days reviewing the 54 page paper of Rabbis Elliot Dorff, Daniel Nevins, and Avram Reisner, and the 34 page paper of Rabbi Joel Roth, which is distillation of an earlier longer paper he authored. The Dorff, et.al., paper is called “Homosexuality: Human Dignity and Halakha,” and it is the “liberal” one that changes the status quo. The Roth paper is called “Homosexuality Revisited” and it is the paper that says we should not change what has been the status quo.

Lay people may not appreciate why this is a big deal to rabbis. Many lay people say “of course we should accept gays and lesbians, why not? Come on, rabbis, don’t be homophobic!”

The issue isn’t about homophobia – it’s about how we define ourselves as a movement. Are we, like the Orthodox, committed to halacha? Do we follow the same halachic process our ancestors have followed? Are we a continuation in the unbroken chain? Or are we like the Reform, willing to say that our sense of what is moral trumps the niceties of halachic reasoning? There are those who claim that with this ruling, those in our movement who are committed to halacha will drift away to Modern Orthodoxy, and those in our movement who are more committed to social justice will become more and more like the Reform. I hope they are wrong—I believe we can be true to both, although as this process shows, it isn’t easy.

I will frame this discussion by going through the reasoning of the Dorff teshuva, bringing in the counter-arguments from the Roth teshuva as we go along. There was a third teshuva by Rabbi Leonard Levy that was approved, also supporting maintaining the old status quo. I have not had time to study that teshuva, and it received a much smaller number of votes, so I’m not discussing it here. There were also two teshuvot that are more liberal than the Dorff teshuva which failed to get enough votes to pass, so I’m not discussing them this morning either.

The Dorff teshuva starts out by point out that this is a very polarizing subject. The responsa points out that there are those who say the status quo is bigoted and intolerable; while many on the other side say Biblically based-mores are immutable, and the burden is on gays/lesbians to somehow change their orientation or be celibate. This responsa finds a middle ground—working within “the limits of traditional halachic discourse” to permit what can be permitted.

It does not overturn anything “d’oraita,” anything that is understood to be a Biblical prohibition. The responsa permits all forms of homosexual activity except anal sex between men, as explicitly prohibited by Lev 18:22. Gays/lesbians may be ordained, and rabbis may be perform commitment ceremonies acknowledging gay/lesbian relations, while not calling such ceremonies “kiddushin” or marriage. People who are bisexual should choose a partner of the opposite gender.

The paper states: “If we were not able to find compelling guidance in the halacha for the sexual lives of our contemporary Jews, including those who are gay and lesbian, that would be a terrible defeat for our religious mission.”

The key arguments in the paper are:

1) Homosexuality is not a form of mental illness, it is not inherently harmful to individuals or their children, it is not something people choose, and it is not subject to reversal. 2) The Torah prohibits one sexual act between two men; all other prohibitions on homosexual activity are rabbinic proscriptions and fences, which we as rabbis can overturn.

3) We do not impose something on people they cannot live up to – i.e., to tell gays/lesbians they must change or be celibate.

4) Human dignity is a very important principle in Judaism, as taught by the rabbis based on the Torah. The status quo prevents Jewishly-observant homosexuals from being able to live in dignity.

5) Rather than undermining Judaism’s sexual norms, the teshuva seeks to extend them to gays and lesbians.

Regarding the nature of sexual orientation, Rabbi Roth does not spend much time disputing the point. His argument is that even if homosexuality is not a matter of choice for people, it is essentially irrelevant to the halachic process. It may mean that some people will have a difficult time following the rules, but it is not, by itself, a reason for changing the rules. But the discussion of sexual orientation is important because it puts the whole discussion into the context of why we are talking about the subject now. Just as women were not accepted as rabbis until the times had changed, and women’s role in society had changed, the discussion about ordaining homosexuals has not come until gays and lesbians have won much greater acceptance in society.

The question of “just what does the Torah forbid” is an important one. The Dorff teshuva argues that when the Torah says “a man shall not lay with a man as with a woman” it is specifically prohibiting one sex act between men, and to forbid more than that would be unnecessarily harsh. They rely on the reasoning of Nachmanides, a respected 13th century Spanish rabbi. They write “We must acknowledge that the established halakhah presents a comprehensive ban upon homosexual intimacy. Even if most of the possible activities are banned “only” by rabbinic authority, we are rabbis who accept and promote the authority of our predecessors…Whether we follow Rambam or Ramban, the established halakhah presents a complete ban on all acts of homosexual intimacy. However, our predecessors assumed that this ban would lead those with homosexual inclinations back into heterosexual marriages; nowhere do the Sages suggest that celibacy is a desired Jewish outcome.” Rabbi Roth argues we should honor the greater weight that the tradition gives to Maimonides and the Shulhan Arukh, both of which state that other forms of homosexual behavior are prohibited Biblically by the commandment not to follow the practices of the Canaanites. Rabbi Roth also argues on a detailed technical analysis that the verse prohibiting a man from laying with a man as with a woman would also prohibit oral sex.

Rabbi Roth essentially argues that we should not overrule what has been accepted halacha for as long as there has been halacha in favor of following a particular interpretation of one rabbi. He disapproves of the methodology of trying to dismiss issues as “merely” rabbinic. However, this is an approach that we have seen in other controversial Conservative opinions. It is basically the same exact approach that the driving teshuva of fifty years ago took – make a narrow reading of what is Biblically prohibited, and then apply our authority as rabbis to overturn the rabbinic barriers or issues. Rabbi Roth also makes a strong argument that what was forbidden is any kind of sexual behavior with a partner with whom one could not legally have intercourse. To say otherwise would imply that any kind of sexual behavior other than intercourse would be permitted, for example between siblings or other people who prohibited from sexual relations.

After defining what they are overturning as rabbinic, the authors of the Dorff teshuva present two major reasons we should overturn the rabbinic precedents: feasibility and kavod-haberiyot, dignity.

Regarding feasibility, they cite Rabbi Eliezer Berkowitz:

Citing the rabbinic principle, ‘what is possible is possible; what is impossible is impossible’, Berkowitz shows that the halakhah demands compliance with that which is not only physically possible, but reasonably feasible…The question that has been placed before poskei halakhah in our day is whether the demand of celibacy that has been made of observant homosexuals is practically or morally feasible.” Furthermore, they say “in demanding that observant homosexuals avoid all sexual contact for life, the halakhah is not asking for heroism but inviting failure. The experience of other faiths that mandate celibacy for their clergy is instructive…

Rabbi Roth argues that permanence of homosexual orientation is not in itself a sufficient reason to seek redress from the traditionally understood demands of the tradition. He maintains the authors have not provided any proof that a moral God would NOT make the demands that our tradition makes.

The argument of the Dorff teshuva that I find most compelling is the argument surrounding the importance of human dignity. The Talmud over and over tells us “So great is human dignity that it supersedes a negative commandment of the Torah.” The rabbis in the Talmud also rush to put a lot of limitations on how widely we apply the principle. They bring several examples from the tradition and say “From this brief survey of the citation of human dignity in Talmudic texts, we learn that this principle is not merely a soft value, but is also used in hard legal applications to override even the biblical requirements that a nazir not defile himself and that all Israelites must return lost objects. In addition, forms of carrying prohibited by the Rabbis on Shabbat can be waived for the sake of human dignity.

The opposite of dignity, בושת , or disgrace, is a major offense in Jewish law. Fear of shaming illiterate individuals led to exempting them from reciting the biblically required first fruits declaration, and allowing the kohen to read on their behalf. The same concern led to the modification of many funeral customs, and also to the separation of the role of aliyah laTorah from the obligation to chant the actual text. Shame too is a relative phenomenon. If all people have a benefit and one person is excluded, he or she is shamed. The families established by heterosexual Jews are recognized and celebrated by the Jewish community, whereas homosexual Jews have been ignored or scorned. This shame demands the attention of the larger community.

They quote an Orthodox rabbi, Aaron Lichtenstein, who said “If the halakhah is reduced to the mechanical application of precedent without concern for its moral motivations, its religious significance is greatly diminished.”

The Dorff teshuva points to ways in which we are embarrassed by how gay Jews have been treated in some of our congregations; they bring this example: “a gay man told us of going to minyan to say kaddish during shloshim for his father. The rabbi prevented him from leading services because he was gay, and then showed him an entire list of “leadership activities” from which he was banned based on that rabbi’s interpretation of the CJLS’s 1992 consensus statement. This humiliation was experienced not only by an individual, but by an entire congregation.”

Rabbi Roth argues that kavod ha-beriyot only gets applied to rabbinic prohibitions; it is not clear that we are talking about rabbinic prohibitions here, and there is a principle which says that in a case of doubt on Biblical issues we rule stringently. He further argues that kavod ha-beriyot in the traditional sources is almost always referring to one person putting aside a commandment for someone else’s honor, not for their own honor.

As they conclude, Rabbi Dorff and company says “Surely it is better for gay and lesbian Jews to establish monogamous relationships with other Jews and thereby to establish stable Jewish households. Surely promiscuity ought to be no more acceptable among homosexuals than it is among heterosexuals. Surely the establishment of family units is central to the preservation of human dignity. For all of these reasons, we favor the establishment of committed and loving relationships for gay and lesbian Jews. The celebration of such a union is appropriate with blessings over wine and sheheheyanu, with psalms and other readings to be developed by local authorities.” They deny that they are overturning Jewish values and norms…they say “On the contrary, we insist that the Jewish values and norms that apply to heterosexual sex be observed by homosexuals as well, including fidelity, safety, respect for one’s sexual partner, modesty, and love. Far from undermining Judaism’s sexual norms, this responsum seeks to extend them to homosexual sex.”

Rabbi Roth’s conclusion is what I presented at the beginning – to take this step would be to make a move that is outside of the system of halacha.

So what does all this mean to us here in Toledo, Ohio? Truthfully, not much. We have a few gay congregants, but I can’t say they’ve been beating my doors down demanding commitment ceremonies. Heck, I’ve only done two weddings for straight people in the two years I’ve been here. Perhaps more gays and lesbians will feel comfortable with the Conservative movement in light of this ruling. But I still think it’s important that we understand this issue as it very much effects how we see ourselves as Conservative Jews.

The Ziegler School of Rabbinic Studies at the University of Judaism will start accepting gay and lesbian candidates for rabbinical school effective immediately. Machon Schechter in Jerusalem will NOT accept people who are openly gay or lesbian as they have their own law committee in Israel and they are not accepting the ruling from the committee in America. JTS in New York will probably embark on an internal process with their faculty to decide whether or not to accept gays and lesbians. In the long run I believe they will, but it may take a while. -NOTE: All rabbinical schools in the Conservative Movement now accept gays and lesbians.

I don’t think the movement will be fractured. We survived the ordination of women. We lost a few people who thought it was wrong, and we’ll probably lose a few over this issue as well. But we’ll also gain some. It’s probably a wash.

I really believe this week is one of the finest moments of the Conservative Movement. I debated this issues a few years ago, and reading these teshuvot now started up another round of “God-wrestling” for me. I feel a little tired just having read and debated them, alone, and with my colleague Rabbi Alana Suskin. I can only imagine how drained those on the Law Committee must feel this week—I bet they’re all saying “thank God for Shabbat!”

But we have wrestled with God and Man and have prevailed. Rabbi Roth has some strong arguments, but at the end of the day I believe the teshuva by Rabbis Dorff, Nevin, and Reisner is acting within the bounds of halacha—and it is certainly within the bounds of halacha as we have been formulating halacha in the Conservative movement. It may be stretching those bounds, it may be pushing the limits, but I don’t believe they have broken the limits. The process may have been somewhat painful, with some crying the sky is falling – but I’m reminded that Jacob too was injured in his wrestling with God. No one said it’s easy.

It may be a little bit like “having your cake and eating it too” but I believe we have succeeded in finding a way to welcome gays and lesbians into our communities and into our rabbinical schools while still being faithful to the tradition and still being faithful to the idea of being commanded. There are a lot of different principles in the halachic system, in the way we formulate law, but I believe one of the most important is ein l’dayan eileh sh’mah einav ro’ot, the judge has to go after what he sees. We give a lot of credence to tradition, but ultimately we have to do what we see as right.

Now that the movement will be able to put this controversial issue somewhat behind us, we can focus on what’s important – building Jewish communities, serving God, drawing people closer to each other and to their Creator. May we remember we need to be welcoming not just to gays and lesbians, but to everyone in our community!

Shabbat Shalom.